Now more than ever.

Mediation Awareness Week. See the televised event by clicking on the image and begin at the 57-minute mark.

Ten Reasons To Negotiate Resolution

1. The Los Angeles Superior Court has closed four court houses and dozens of court rooms. 

2. Time is literally money (see the time value of money).

3. The law (and your lawyer) only care about relevant facts - the most important part of your dispute may well not even be addressed, let alone resolved, by a jury verdict in your favor.

4. As your trial date nears, everyone - the judge, your lawyer, their lawyer, your spouse, your friends, and random acquaintances will urge you to negotiate a resolution with a neutral third party (a mediator).

5. Your attorney settles 90% of every case s/he litigates. S/he rarely goes to trial anymore. Ask her about the last verdict she won and then the one before that. If you have a skill (piano, golf, cooking a souffle) ask yourself how well you'd perform if you haven't used that skill recently or often.

6. Litigation is an extremely expensive board game, much of which is simply the cat and mouse exercise of discovery. Here's how it's played. I ask for documents. You object. I write you a letter demanding compliance. You write back refusing to comply and reminding me I have to "meet and confer" with you before we ask the discovery referee to intervene. We meet. We accomplish nothing. I make a motion (write a "brief") to compel you to turn over documents. You write an opposition. I write a reply. We pay the discovery referee to read our papers and listen to our oral argument. The discovery referee splits the baby in half or fourths or tenths. One of us asks the Judge not to sign off on the discovery referee's decision. More papers, more writing, more time, more of your money. The Judge, not a lion of courage, splits the baby again and refuses to award either party the costs of forcing compliance. Two months later (at least six have now elapsed) you get a stack of documents and a privilege log listing the documents that aren't being provided. I write you a letter demanding that you turn over documents on the privilege log. Rinse. Repeat.

7. As if the disrespect of the original dispute were not enough, I now get to sit you down in a conference room with a court reporter and spend a day or two asking you questions you don't want to answer. Often, the questions are asked in a disrespectful manner. When you complain to your attorney, he says "that's just the way the game is played." Focus on the word game. Are you having fun yet?

8. You get a bill for legal services rendered every month but you're no closer to resolution after receiving and paying 12 of these than you were on day one.

9. You're a business person. You negotiate business deals every day. Your lawyer does not.

10. You have given away any power you might once have possessed to resolve this dispute to a lawyer who does not understand your business, your life or the facts that drove you to seek legal advice in the first place.

Had enough? There are people out there - mediators - who are specially trained in helping you first communicate with your attorney and then helping you negotiate the resolution of your dispute with the "other side." Choose carefully. There are as many bad mediators there as there are litigators. My best advice? Negotiate the resolution of the dispute yourself even if it requires you to swallow your pride and to be the first one to say, "let's sit down and figure out how best to serve your interests and mine at the same time."

We were in hour ten of a multi-party mediation convened to settle a million dollar copyright dispute among three Los Angeles garmentos. Counsel for the target defendant was demonstrating righteous indignation for my benefit. He was packing his trial bag, fuming about the other parties’ bad faith and the waste of time the mediation had been.

I don’t highly recommend this negotiation tactic but I see it a lot.

“We’re leaving,” counsel shouted, gesturing that his client should follow.

I too have a temper. I don’t know a litigator who doesn’t. But I tuck it down deep when I’m playing the role of “neutral.”

“I don’t think that’s a good idea,” I responded in the low, slow, patient tone of voice you use with over-excited children and frightened animals.

“And why do you think that?” he snarled.

“Because the first thing your client said to me was that failure here today was not an option. He’s broke. He’s nearing retirement. He’s beaten. He can’t sleep at night. He needs me to get the best deal possible and then he desperately needs to take a vacation.”

The client, who hadn’t moved a muscle since this exchange began heaved an audible sigh of relief and said to me “thank you so much. I’ve been saying that for two years and no one has ever acknowledged it before.”

This is where legally astute resolution of litigation by executives and managers comes in.

Continue reading here

This just in from one of my colleagues at ADR Services, Inc., Michael P. Carbone. Good stuff and an excellent mediator for commercial real estate and construction dispute litigation.

A mistake that lawyers sometimes make is failing to ask for what they want.  If they do want an evaluation they can ask for it when they hire the neutral. There are processes variously known as neutral evaluation, non-binding arbitration, or early case assessment which are designed specifically for this purpose.  They can be used independently or they can be combined with mediation.
 
I was once hired to give a neutral evaluation in a commercial real estate case.  The parties told me at the outset that while they were interested in exploring settlement they were really interested in my opinion on the merits.  So we conducted a mediation that included a neutral evaluation.  Not only did this meet their needs, the evaluation was given in a confidential setting and could not be used as evidence if they did not settle.
 
The point is that both parties wanted the process to be evaluative.  It was not a situation where one party was expecting the mediator to be evaluative and the other party wanted the mediator to refrain from doing so.
 
When parties hire a mediator, they need to be of the same mind about the process. Otherwise the result will be like splitting a steak with your partner when one of you likes it rare and the other likes it well done. Somebody is going to get indigestion!

We've had a busy week over at ForbesWoman in articles and blog posts covering:

The Davos World Economic Forum

The paucity of women at the Davos Economic Forum despite how rich the ones who attended are as described in this post by Forbes staff writer Louisa Kroll, The Richest Women at Davos.

Women's Davos Wardrobe Dilemmas covered by Moira Forbes as an unfortunate but still critical factor for the display of power necessary to be a player at the World Economic Forum.

A photo gallery of the executive conferences women CEOs love best.

The Continued Assault on the Glass Ceiling

Aman Singh's post on Why So Many Top Women Don't Make it to Executive Leadership.

Jenna Goudreau's Jobs Outlook:Careers Headed for the Trash Pile

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 From today's Wall Street Journal Law Blog (an Angels fan):

 every time we hear the name “McCourt” these days, our heart leaps a little. Who cares if the ridiculous divorce travails of Jamie and Frank end up wrecking the team, after all? The worse the Dodgers fare, the more likely it is that fans will shift their allegiances to the superior team that plays 30 miles down I-5.

In any event, according to this AP report, the McCourts are finally softening, it seems, and taking the whole debacle into mediation.

A person familiar with the case told the AP late Tuesday that the two sides would meet in a downtown Los Angeles courtroom Friday. Click here for the take from Josh Fisher’s Dodger Divorce blog.

As a member of the Los Angeles Chapter of the Federal Bar Association and incoming Chair of the FBA's ADR Section, I'd like to wish the Central District's new Settlement Officer Panel Czar a hearty welcome to the District and to Los Angeles.

Gail Killifer has been actively mediating with Killefer Mediation for the past nine years.  In addition to her mediation experience, knowledge and training, she brings to the new job an unusual depth of academic experience from her nine years as an Adjunct Professor at U.C. Hastings College of the Law where she taught mediation to law students.

Having served on the ADR panels of the U.S. District Court for the Northern District of California and other Bay Area superior courts, Ms. Killifer is well acquainted with the challenges facing federal attorneys, mediators, administrators and the judiciary in running the robust and highly qualified settlement officer panels that the U.S. Courts are known for.

Ms. Killefer served as an Assistant United States Attorney in San Francisco from 1989 to 2001.  She served as a Deputy Chief, Civil Division, 1994-1998, and as Chief, Civil Division, 1998-2001.  Prior to joining the U.S. Attorney’s Office, she served as a Trial Attorney with the U.S. Department of Justice, Torts Branch, in Washington, D.C., and as a law clerk to the Honorable Barrington D. Parker (D.D.C.).  She received a B.A. from Stanford University and a J.D. from the Vermont Law School.

If your intent is transformation, you can get there by reading the telephone directory. ~ Unknown

My primary job as a mediator, aside from learning the "case" and acquainting myself as deeply as possible with the parties' interests - is to "hold the space" of resolution.  That usually means that I begin the process by creating an atmosphere of hope that the matter can be resolved and by providing assurances that the mediation room is a safe environment in which to have candid conversations about the dispute without fear of ridicule or other emotional attacks. 

What I had done here was create an atmosphere of distrust and peril.  Even before one of the parties telephoned me, I was naturally beginning to feel remorseful.  The telephone conversation that did occur could not have inspired trust in a mediator who seemed more interested in her own inconvenience than the well-being of the parties.  Led to believe (despite my persisting doubts) that the parties were proceeding to mediation in a good faith effort to settle their antitrust litigation, I agreed to arrive at the appointed hour with the same intention. 

I awaken the next morning feeling pretty much the same way litigants do prior to a mediation.  They have outstanding conflict issues with one another - telephone calls not returned; suspicion generated by the games litigators play; harsh words exchanged between the parties; accusations lobbed by counsel across the bar to the sitting judge; and, the natural demonization that occurs when the parties stop talking to one another and put their disputes into the hands of attorneys. 

No matter how sophisticated the litigation and how able the counsel, at least half the people in the room would rather not see the other half now or ever.  No one likes conflict.  But if your mediator is unskilled at facilitating a group process in the presence of conflict -- even one she's created -- hire another mediator.  

I enter the meeting room all "morning in America."  Shake hands, make and receive introductions, sit down with the entire group in joint session, roll up my sleeves and get to work.  Everyone seems cheerful, unusually so.  They're friendly with one another and only slightly wary of me.  We carve out one of the issues that seems most amenable to resolution, stay in joint session and make progress on that issue before we eventually reconvene in separate caucuses.

At some point in the process, when everyone seems affable and we are sharing war stories while waiting for a counter, someone mentions the email.  This spirit of camaraderie among counsel and the parties, I'm led to believe, arises from my irritability.  They united, they say, against me.  I somewhat sheepishly acknowledge that my intention was not to create a common enemy.  I admit, however, that I'd awoken that morning hoping that, at a minimum, the parties would have come together in the spirit of resolution against a mediator who'd accused them of gamesmanship. 

Five hours after we begin, we have narrowed the issues, resolved significant differences in opinion and have whittled a $10 million dispute down to a $500,000 difference of opinion.  I leave confident that the parties will resolve that difference, either through direct negotiations or in a future mediation, with or without me.

There are takeaway lessons here - not the least of which is a reminder that we can resolve the conflict we create simply by showing up and being accountable for our part in it. 

The larger lesson about developing conflict-resilience will be the subject of the final post in this series tomorrow.

Unwelcome mediator's proposals are trial counsel's single biggest mediation headache. Done correctly, a mediator's proposal builds on prior negotiations, manifests the parties' unspoken intent to settle and bridges the gap to closure. Done poorly, a mediator's proposal is a bell that cannot be unrung. It emboldens the side it favors, making the case more difficult to settle while alienating counsel and clients.

Best practices for mediators:

1. Before making a mediator's proposal, make sure that it is what the parties want. If you are not sure, don't do it.
2. Build on prior negotiations.
3. Allow time for consideration and securing authority

1. In the first caucus, inquire about the mediator's thoughts, philosophy, practices and procedures re: mediator's proposals.
2. Instruct the mediator that he may not make a mediator's proposal without your express permission.
3. Keep a watchful eye during the mediation's final third, so you can either head off or shape a mediator's proposal.
4. As a last resort, terminate the mediation. It will be easier to restart the negotiations than to repair an unwelcome mediator's proposal.

(pictured:  retired Judge hearing for the first time that his job as a mediator is to facilitate a negotiated resolution, not  to decide the legal action in the absence of evidence)

I have often bemoaned the spotty state of mediation education, training and mentoring in the ranks of those people who mediate litigated cases.  My own recent mediation experience - as a party - makes me even more concerned about the state of mediation practice.  As you can see below, it also makes me feel what many people feel post-mediation and that feeling is anger.

For those lawyers who judge mediator competence on self-reports of mediation "success" or on hearsay about the number of "settled case" notches a mediator has on their "neutral" belt, let me say this one more time. 

Settlement is not the goal.

A mediator who "settles a lot of cases" is not therefore a "great mediator." 

A mediator who "settles a lot of cases," particularly those involving unsophisticated players (i.e., people) may be a terrible mediator. 

The purpose of mediation is to serve litigants' justice interests while at the same time helping them negotiate a resolution to litigation if a negotiated resolution is a better alternative to trial. 

Below, 27 ways to F$#@up a will contest mediation and 10 things to do if you want to learn your trade.

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From Yahoo News . . . . I'm assuming the parties to the settlement waived mediation confidentiality on this one . . . Seems odd though.

"It is compensation for three people for the rest of their lives who have been horribly damaged over a period of 17 or 18 years," mediator Daniel Weinstein told The Associated Press.

Dugard and her daughters, ages 15 and 12, filed claims in February, saying parole agents with the Department of Corrections and Rehabilitation began supervising Garrido in 1999 but didn't discover them.

The Dugard family members claimed psychological, physical and emotional damages. . . . .

The money will be used to buy the family a home, ensure privacy, pay for education, replace lost income and cover what will likely be years of therapy, said Weinstein, a retired San Francisco County Superior Court judge. In addition, much of the money will be placed in long-term investments, he said.

"It was not an effort to make reparations for the years of abuse and incarceration or imprisonment against their will, because ... the damages to these people were incalculable," Weinstein said in a telephone interview. "Part of this was a prudent effort by the state to shut off liability from a catastrophic verdict."

Weinstein praised the state for quickly accepting responsibility, and the Dugards for accepting a reasonable settlement at a time when the state faces a $19 billion budget deficit. He said the scope of the claim was unprecedented in his 20 years as a mediator because of the duration of the crime and that it led to the birth of two children.

On Friday, a proposed Facilitated Mortgage Workout Program quietly passed from the California legislative scene after its defeat the day before, three votes shy of passage. Although the bill's proponents thereafter won a short stay of execution, the law making body's failure to reconsider the bill by Friday's deadline made it dead on arrival.

Given the concerted opposition of the lending and banking industries, as well as by the national Chamber of Commerce, it is surprising that the margin of the defeat was so narrow, suggesting that many in this (and other state legislatures) are continuing to feel considerable  pressure from their constituents to take bolder action in response to the nationwide housing collapse -- a collapse that has been particularly severe in the Golden State after years of annual double-digit inflation in housing prices.

Continue reading here.

Chris Hill's Mediation Training 

By taking the role of the mediator in particular, I had to take off my advocate hat and force myself to let the parties work to a solution despite my desire to jump across the table and shake them until reason, and what I thought was the proper legal solution, prevailed.  I found it difficult to sit there and just listen before doing something I am far from used to outside of a client counseling role, namely remove (instead of add) the types of loaded words that all lawyers use in advocacy and to replace them with more neutral words when clarifying the parties interests.

By the end of a couple of the role plays my brain hurt because of the use of mental muscles that I hadn’t used out in the open.  By trying (sometimes sucessfully, sometimes less so) to remove my past experience as an attorney in mediation and as a litigator in order to guide the parties to a decision with which they could live and that they came to on their own, I learned how hard it is sometimes to let the process work.  I gained a better understanding and appreciation for good mediators who can take two parties that have been at each other’s throats for nearly a year and bring them to a solution.

Welcome to the club, Chris!

Insight from the academics at Concurring Opinions' post on PERCEPTIONS IN LITIGATION AND MEDIATION: LAWYERS, DEFENDANTS, PLAINTIFFS AND GENDERED PARTIES (Cambridge University Press, New York, 2009. Post by  Tamara Relis. Image from Legal Blog Watch.

[P]laintiffs’ articulations of their litigation objectives rarely correlated with legal actors’ perceptions.

In fact, a regular and conspicuous occurrence was the failure to mention financial compensation as an objective at all unless probed (occurring in 65% of interviews).

Instead, what plaintiffs recurrently repeatedly was a lexicon of non-fiscal, extra-legal objectives for litigation. The issue of ‘principle’ was prominent for plaintiffs as revealed in the various objectives they passionately spoke about. ‘It’s not about the money’ was a recurrent theme throughout. Many of the comments concerned dignity and respect after the injury, inability to be heard, refusal to listen, dismissal and victim blaming.

Moreover, plaintiffs’ extra-legal objectives did not appear to be affected by the passage of time, as there were no marked disparities in the way plaintiffs spoke of why they sued and what they wanted from the civil justice system as between plaintiffs who had commenced litigation three to four months earlier (interviewed subsequent to court-mandatory mediations) and claimants who had been litigating for several years (interviewed after voluntary mediations of cases already on trial lists).

Here are the results from the question:  what are your aims in mediation?

The disparity in mediation aims of plaintiffs and plaintiff lawyers revealed important differences in what each planned for mediation in terms of how to resolve the same case.  Other than wanting settlement, the mediation objectives of plaintiffs and plaintiffs’ lawyers were diverse in all categories. For instance, though some plaintiff lawyers noted their clients wanted defendants to admit fault (37%), regardless of feasibility not a single one sought this at mediation. In comparison, virtually all plaintiffs (94%) sought fault admissions at mediation. Similarly, plaintiff lawyers never mentioned wanting to hear defendants’ explanations of the disputed incidents. Again this was something that most plaintiffs desired (71%). Finally, as compared with the bulk of claimants (88%) who sought apologies at mediation, only a minority (32%) of plaintiff lawyers did (though almost half remarked that apologies were important for their clients).

For more charts, data and analysis, see the incredibly useful post over at Concurring Opinions here.

Inga Watkins and I will be presenting this topic at the ABA Dispute Resolution Conference this coming Friday in San Francisco. 

Five years ago, after twenty-five years of high-stakes complex commercial litigation, I left legal practice to pursue a full-time ADR career.  At the time I left practice, these were the questions my teams and I were asking about the qualifications of mediators:

"Do we really want to hire an attorney mediator for this case?"

"Don't you think the client wants a Judge?"

The ADR profession has mostly passed that hurdle.  Though some litigators continue to say "my client needs to hear the bad news from a retired judge," most litigators understand that mediation is more about influence, deal making, subtle persuasion, specialty knowledge, "real life" experience, people skills, and raw intellectual speed.  

(why is the second edition of this book pink?)

I've been reading Women Don't Ask:  Negotiation and the Gender Divide by Babcock and Laschever in preparation to teach my month-long You Can Negotiate Anything course for women over at Lisa Gates' shop, Craving Balance. Wow!  It's like reading The Second Sex for the first time in college.  It explains so much.

Right now I'm going to remind my readers that well-behaved women rarely make history.

These are the conversations taking place at the highest levels when someone suggests my name as a mediator.

"Do we really want a woman mediating this case?"

"The client won't accept a woman mediator."

"This case doesn't have women's issues in it."

"If it was an employment case, a woman might be appropriate.  Those cases involve a lot of emotion. Women are good at that." (I'll say it again:  if you don't believe men are emotional about litigation, you don't understand that anger is an emotion)

Why are they even talking about my gender?  Why is it relevant?  They don't ask "do we really need a man to mediate this case?"  Except on those occasions when women's issues are involved.

How do I know this?

I've got the statistics from Babcock and Laschever; I've got the knowledge of how high-end litigators talk deeply embedded in my genetic code; and, I've had the following way too recent conversations.

Conversation Number One with the CEO of a Successful ADR Panel

Victoria:  "Let's put WLALA (Women Laywers of Los Angeles) on the list of organizations to send marketing materials to."

CEO:  (without a beat) "No.  Women don't refer."

Conversation Number Two with (male) Litigation Client in Separate Caucus

Victoria:   "Do you worry about jury blow back because your clients don't have green cards?"

Attorney:  "Not any more than I'd be worrying about what they'll think of the Lesbians in the next room."

Victoria:  "Ohhhhhhhh, they're Lesbians!"

Attorney:  "Why do you think we hired you?"

Conversation Numbers 3-10 with Separate Litigation Clients in Separate Caucus

Victoria (as an aside):  "You know I didn't practice personal injury law."

Male client:  "We know.  But we needed a woman for this case." (# 1:  injuries to the scalp at a hair salon; #s 2-5:  injuries arising from Botox treatments; #s 5-8:  women real estate brokers or agents and women clients; # 9:  medical malpractice:  wrongful cliterectomy; # 10:  medical malpractice:  wrongful vasectomy).

Conversation Number 11 with the Head of a Federal Settlement Panel

"The attorneys rarely choose the women on the panel." (and we're free!)

Conversation Number 12 with an ADR Insider

"So few attorneys were choosing African-American and women arbitrators that they stopped putting them on the panel."

A Baker's Dozen:  Conversation Number 13 with a Fellow Mediator (Male)

Mediator:  "Why don't you pursue the women's market?"

Victoria:  [speechless]

Although the answer to this question could have been:  "because women don't refer."

Get the picture?  Yes we see.

Why "Women Don't Ask:  Negotiation and the Gender Divide" makes this all make sense tomorrow.

I'm sure you've noticed that we're celebrating negotiating women here this month in honor of International Women's Day and National Women's History Month.  Other than tomorrow night's free negotiating women teleseminar with super coach Lisa Gates, I'm celebrating by posting in one place all of my articles on negotiating women.

Unlike many others in the mediation field, I did not make the acquaintance of Richard Millen until recently.  In the past couple of years, we met for extended lunches and too many tall lattes (the lattes mine) between the old Wolfgang Puck's and the shuttered Virgin Record Store at Sunset Blvd. and Crescent Heights. 

Aside from the usual frustrations of mediators (insufficient respect; the difficulty of making a living; doctrinal disputes; and, the like) Richard suffered from age bias quite acutely.  It was not  any physical ailment or  diminishment in mental capacity that left Richard unoccupied after a robust and active professional life, it was the way in which he felt patronized, under-utilized and overlooked because others believed he was simply too old to do the job.

This is as untrue as any other stereotype or prejudice. As Richard noted in Transcendent Mediation, the facilitation of dispute resolution is a wisdom business in which the mediator, as the agent of change, disappears as the parties "do for themselves what they came for the mediator to do."  Richard explained:

Wise mediators . . . need to adopt is a different epistemology which changes the way we think about the conflict[,] thereby avoid[ing] “solutions that may seem quick and easy and expedient, but in fact are premature. . .resulting in a helping and a fixing instead of a non-hierarchical, common endeavor toward, if not to, a complete change of energy and reconciliation. 

“Our essential task is to allow all sides of an issue or pairs of opposites to exist in equal dignity and worth until their hidden unity is revealed.  By befriending and strengthening our capacity to hold paradox, we explore the realm of spiritual growth.  As we actualize all aspects of ourselves and weave them into an apparent symmetry, we become more skillful problem solvers, mediators, stewards of justice, and models of patience and mercy.   

Finally, there is [the instruction of] The Bhagavad Gita [that] we should neither be attached to the actor nor to the fruits of the action.  [W]hen a mediator is not so attached, the mediator is truly liberated to serve the parties in the mediation process by changing it to a positively oriented non-hierarchical, common endeavor in which the parties do for themselves what they came for the mediator to do.   

 

  

That is how to be and do as both a mediator and as a person in one’s life with []power[] of choice.  When as mediators we are in service to others, we are working on ourselves.  When we are personally working on ourselves, we are helping others.  It is the same.  We cannot tell the difference.  

 

It is as Rumi wrote,

I, you, he, she, we,

I, you, he, she, we.

In the garden of mystic lovers,

these are not true distinctions.

We've taken on racial and gender bias here recently.  In honor of Richard, let's also rethink our attitudes toward the aged or "elderly."  As geriatric nurse Alison Parsons explains in her article Attitudes to the elderly:

Ageism is "a process of systematic stereotyping of and discrimination against people because they are old... Ageism allows the younger generations to see older people as different from themselves, thus they subtly cease to identify with their elders as human beings." (Butler, 1975, cited in Matteson & McConnell, 1988: 482). Matteson and McConnell (1988: 482) point out that ageism decreases social status, and diminishes contact with younger people. It affects the health care of older people by influencing the attitudes of health care professionals and policy-makers towards the aggressiveness of diagnosis and treatment of the elderly. These attitudes are often based on erroneous assumptions regarding the utility of chronological age as a marker of function or ability to contribute to society. The tragedy of ageism is that it robs society of the fullest contributions of its older members, and it denies people's fulfilment of their potential as human beings throughout the life course.

 

Let's use the time of Richard's passing to take a look again at his writings and rethink our own attitudes not only toward age but toward what too many attorney-mediators dismiss as "touchy feely" practices - the ones that can take the opportunity offered by conflict to experience a moment of clarity, transformation and transcendence.

Mediation World Loses a Patriarch.

I understand from Richard's devoted friend, mediator Lee Jay Berman that Richard's family is having a private internment on Friday at Mt. Sinai but that he and mediator Laurel Kaufer will be planning a tribute soon, an event to honor Richard's life.

I don't think there's a mediator in town who didn't know and love Richard.  Not, you'll excuse the presumption, a "real" mediator at any rate.  Richard, for all his storied "soulfulness" did not suffer fools gladly or at all.  Nor did he cotton to separate caucus, position-based, distributive, single-issue, monetized shuttle mediation.  He considered most of us lawyers benighted fools and strove mightily to treat us with compassion rather than holding us in contempt.  That old cavalry soldier was never one to roast marshmallows over an open fire - he'd rather roast a few executives, attorneys, and "settlement conference" mediators instead. 

The last time I saw Richard - not that long ago - he was sitting by my side at a meeting of the State Bar's Standing Committee on ADR muttering angrily about the way we were all wasting our time on legal issues, debating for God's sake, when we'd been given the keys to the kingdom already, keys we'd so carelessly left at home tarnishing in junk drawers.

I don't know what else to say.  I hope people who knew and loved Richard will come here to share stories and say good-by and we love you without sentimentalizing him because he would have hated that.  I would think Richard would have raged raged against the dying of the light except for the fact that he was pretty fed up with the lot of us toward the end there.  So I'll end with a poem that doesn't cotton to people just up and vanishing.  By one of the great contemporary poets of the English language, W.S. Merwin.  

The Truth of Departure

With each journey it gets
worse
what kind of learning is that
when that is what we are born for

and harder and harder to find
what is hanging on
to what
all day it has been raining
and I have been writing letters
the pearl curtains
stroking the headlands
under immense dark clouds
the valley sighing with rain
everyone home and quiet

what will become of all these
things that I see
that are here and are me
and I am none of them
what will become
of the bench and the teapot
the pencils and the kerosene lamps
all the books all the writing
the green of the leaves
what becomes of the house
and the island
and the sound of your footstep

who knows it is here
who says it will stay
who says I will know it
who said it would be all right

Mediate.com - where I published my first article on mediation - was kind enough to publish an interview with me about my mediation career and blogging experience today.  Below an excerpt and at the link, more than you ever wanted to know about my legal and ADR career.

 [By mediating,]I regained everything I'd ever loved – people, story, drama, recovery – yet was allowed to retain the intellectual puzzle, strategic problem-solving job I'd enjoyed so much.  It was like the farmer says at the county fair – he uses “every part of the pig except the squeal.”  I too was now using every part of myself, including a squeal of delight.  The mediation career I've carved out for myself include negotiation training (so I get to teach, which I love); writing (blogging and the book that's grown out of it); and, helping people resolve business disputes burdened with justice issues in a way that is far more efficient, effective and creative than the litigation process affords.

If you're following this blog but not Diane Levin's Blog The Mediation Channel, I have good news for you.  Diane is an extremely focused, disciplined and lively writer.  She's also one of the brightest and most canny negotiators, mediators and negotiation trainers I know.

Diane describes her series, Fallacious Argument of the Month, as follows:

With the goal of promoting clearheaded and reasoned debate and improving discourse, each month I skewer a different fallacy.

Before giving you entree to this excellent series, let me first note that these arguments do not justify any movement in your negotiation position.  Remember - you need a new number and a new reason to counter that new number.  If your mediator or negotiating partner expects you to give up something, he'd better have a darn good reason for you to do so.  If you're a lawyer representing a party, you can feel your client figuratively or literally tugging on your sleeve when you offer more or agree to accept less in the absence of a justification that makes business sense.

The Appeal to Authority

Argumentum ad Hominem (this one is so irritating it can create impasse where none previously existed)

The Red Herring

Confusing Cause and Effect

The Misleading Ellipsis (to which I add this caution ~~> the quickest path from respected advocate to deceitful scoundrel is the misleading ellipsis - Judge, Arbitrator, Mediator and Opponent will all distrust your bona fides from that date forward; if you can't think of a better argument, fall on your sword on this issue and create a better one just over the next hill).

The False Analogy

The Straw Man

Diane adds one new fallacious argument every month.  I'll endeavor to keep up with her.  But more reliably, get her RSS feed, add it to your google reader and never again be without the wisdom of this brilliant mediator and negotiation trainer and consultant.  That's her smiling face at top.  Visit her often! at The Mediation Channel.

The not so secret opinion among mediators is that attorneys make settlement more difficult.  Just as lawyers are heard to say that "litigation would be great if it just weren't for the clients" (a "problem" only class action plaintiffs' lawyers have actually resolved), mediators  tend to say "mediation would great if it weren't for the lawyers."

Esteeming the rule of law in America as I do (especially in the recent era of its greatest peril) I have never seen lawyers as a problem in facilitating settlement of the lawsuits they have been eating, drinking, sleeping and, dating for years longer than I've spent reading their briefs and engaging in some pre-mediation telephone discussions.  

I can't say lawyers are a problem because:  (1) they're my job; and, (2) they're "my people" in the "tribal" sense.  A few bad apples aside, lawyers are among the hardest working, most ethical, creative, multi-talented professionals I know.  And they are pretty much solely responsible for fighting the battle, on every common weekday, to preserve the rule of law as a bulwark against tyranny on the right and anarchy on the left.

It was therefore no surprise to see a recent Harvard Negotiation Journal article (thanks to Don Philbin of the Disputing Blog and his indispensable ADR Toolbox) that one group of academics has asked whether attorneys have a Negative Impact . . . on Mediation Outcomes.

Let's start with this particularly widespread canard from the article:

Attorneys may delay the settlement of a dispute through mediation for financial reasons. For example, the payment of professional fees on the basis of hours worked could motivate the attorney to delay the settlement of the dispute to increase the number of hours billed to the client  (citations omitted).  Such non financial reasons as a desire to build or preserve a reputation for “hardball negotiating” in highly publicized cases could also motivate an attorney to delay settlement of the dispute [which the authors don't mention often results in a far better outcome for the client].   In addition, attorneys’ (or their clients’) commitment to or belief in their case based on questions of justice or other principles [which are worth, in my opinion, greater attention that purely monetary outcomes] could also delay settlement until “defending the principle becomes too costly” (citation omitted). Finally, attorneys may wish to justify both their role and their fees with unnecessary interactions./1

Are we mendacious, self-serving, parasites of the "justice system," feathering our own comfortable nests as we attempt to preserve the "outdated" notion that the justice system is capable of delivering justice? I don't believe so, but let's not get all anecdotal about these questions when we have cold, hard statistics within reach.  What were the results of this study on the way in which attorneys might "get in the way of" a successful mediation?

Here's the bottom line assessment (please read the article yourself to draw your own conclusions).

The empirical data we collected in this study indicate that the presence of an attorney in a mediation does not significantly affect the settlement rate, the time needed to reach an agreement, the perceived fairness of the process, the parties’ level of satisfaction with the agreement, or the parties’ level of trust that the agreement will be honored. These results indicate that attorneys have much less impact than is claimed by those mediators who do not welcome their involvement in the mediation process.

Nevertheless, the results also demonstrate that the presence of an attorney does affect mediation outcomes in at least two ways: by reducing the parties’ level of satisfaction with the mediator’s performance and by reducing the level of reconciliation between parties.

So the Myth Busters of this study conclude that attorneys:

1. don't "significantly affect the settlement rate" /2
2. don't significantly affect "the perceived fairness of the process";
3. don't significantly affect "the parties' level of satisfaction with the agreement; and,
4. don't significantly affect the "parties' level of trust that the agreement will be honored."

This is the subjective viewpoint of the litigants, mind you, in a dynamic where the mediator often openly attributes the success of the mediation to the clients' attorney - an observation which is more deeply true than most mediators would care to admit with all their white horse hi-ho silver, magic bullet off-to the-rescue enthusiasm.

What did litigants report to the authors of this article?  They indicated that attorneys adversely affected mediation outcomes in two ways:  (1)  they reduced the parties' "level of satisfaction with the mediator's performance"; and, (2) they "reduced the level of reconciliation between the parties."

Of all of the purported effects of attorneys' presence at mediation - without whom, it must be noted, the parties would not likely be induced to sit down and mediate at all -- the only significant perceived difference is the failure of the mediation process to reconcile the parties - something in which the legal system has little to no interest.

Please read the article for proposed solutions to the reconciliation issue.  As to the remainder of the study's findings, I have this to say:

1. whenever two or more people are gathered together, the dynamics of the group more profoundly affect the outcome than do the contributions of any individual member of the group.  Our "reality," especially as it appears in a group setting, is "co-created."  See the New York Times must-read article on the Psychology of Terrorism and Retail Marketing at Google Books (the latter noting that because people live in a social world which is co-created in social interaction with others . . . . [they] can be thought of as both products and producers of the social world."  Id. at 218.)
2. try as you may, you will never be able to untangle the threads that create the intricate tapestry of a settlement; every member contributes something invaluable without which the precise result could not possibly have been achieved. 
3. who is therefore responsible for the good and who responsible for the purportedly bad results of mediation?  That's easy:  EVERYONE IS.

That being the case, we are all responsible for our outcomes - whether our contribution is "negative," i.e., resisting settlement, for instance, or "positive," i.e., problem solving the reasons given by Mr. Negative that the case simply can't settle on terms acceptable to all.  Remember your University philosophy class? Thesis, Antithesis, Synthesis.  We need people willing to state the negative to problem solve it positively.  The relationships cause the outcome, not one member of a group unless that member is a tyrant with loyal troops at his command. 

If you'll allow me a literary reference that justifies my own collegiate career and says far more eloquently than I ever could why we're all accountable, I first give you one of my favorite authors, Paul Auster (who you may remember as the screenwriter of the movie Smoke).

The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to [us] to write [our] own book. Paul Auster, The Decisive Moment from The Art of Hunger.

The second excerpt I will leave for your thoughtful consideration is by the greatest scholar of comparative religions to ever inhabit the planet - Joseph Campbell (skip the intro with the new age music).

Schopenhauer, in his splendid essay called "On an Apparent Intention in the Fate of the Individual," points out that when you reach an advanced age and look back over your lifetime, it can seem to have had a consistent order and plan, as though composed by some novelist. Events that when they occurred had seemed accidental and of little moment turn out to have been indispensable factors in the composition of a consistent plot. So who composed that plot? Schopenhauer suggests that just as your dreams are composed by an aspect of yourself of which your consciousness is unaware, so, too, your whole life is composed by the will within you. And just as people whom you will have met apparently by mere chance became leading agents in the structuring of your life, so, too, will you have served unknowingly as an agent, giving meaning to the lives of others, The whole thing gears together like one big symphony, with everything unconsciously structuring everything else. And Schopenhauer concludes that it is as though our lives were the features of the one great dream of a single dreamer in which all the dream characters dream, too; so that everything links to everything else, moved by the one will to life which is the universal will in nature.

It’s a magnificent idea – an idea that appears in India in the mythic image of the Net of Indra, which is a net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems. Everything arises in mutual relation to everything else, so you can’t blame anybody for anything. It is even as though there were a single intention behind it all, which always makes some kind of sense, though none of us knows what the sense might be, or has lived the life that he quite intended.

Joseph Campbell - The Power of Myth, with Bill Moyers, as quoted in Derek Parrott's Blog.

Lawyers, mediators, clients, experts, consultants, legal assistants, and, yes, even your spouse with whom you consulted before today's mediation, every one of them is part of the "net of gems, where at every crossing of one thread over another there is a gem reflecting all the other reflective gems [so that] [e]verything arises in mutual relation to everything else, so you can't blame anybody for anything" and, by the  way, we can't credit credit nor bear all the responsibility for anything.  We are all capable.  We are all accountable.  And we all contribute something to the whole.

So we can stop pretending to be better than we are now.  We can all put down the burden and shame of our own entirely human fallibility; the myth that we ever do anything without the contribution of others; and, the pretense that we don't behave as badly, or as well, as other people do.  We're part of the team.  We're in it together.  Isn't that good news for the New Year?

And to give you a treat from having gotten this far, a scene that is all about seeing, from Paul Auster's Smoke.

____________________

1/ I'd be interested, of course, in what the authors consider to be "unnecessary interactions."

2/ This is a particularly interesting finding since mediators have also been found not to improve the settlement rate but only greater party satisfaction in several studies.

I've posted two pieces on non-litigated business to business mediations at the Commercial ADR Blog (here and here) in the context of a dispute between a medical marijuana facility and its neighboring tenant.  For reasons not entirely clear to me, the new blog has been generating a lot more comments than this blog generally does which pleases me and leads me to let the Negotiation Blog's readers know of the on-going conversation over there.

Value-based fees in the mediation and ADR world

A word to the wise about foreclosure mediation from the Buffalo News Business Today article, Fear stymies mediation.  Excerpt below. 

Timothy Walker has one message for all the homeowners facing foreclosure in Western New York: If you get a letter inviting you to come to court, don’t be afraid. Just show up.

Walker, acting Supreme Court justice, oversees the state-mandated settlement conferences locally that are designed to bring defaulting homeowners and lenders together one last time to find a solution before ordering a foreclosure sale.

His job at these one-on-one meetings isn’t to take away someone’s house. Rather, his mission is to encourage both sides to sit down and make every effort to keep borrowers in their homes.

Since the process began, Walker and his staff have convened more than 341 meetings, with nearly 100 homes saved from foreclosure by getting lenders to modify loans to make them affordable. That’s about three times the success rate downstate.

Thanks to California State Bar legislative counsel, Saul Berovich.

Center for American Progress report - Mandatory Mediation in the Foreclosure Process

http://www.americanprogress.org/issues/2009/06/pdf/foreclosure_mediation.pdf

National Consumer Law Center report - State and Local Foreclosure Mediation Programs: Can They Save Homes?  http://www.consumerlaw.org/issues/foreclosure_mediation/content/ReportS-Sept09.pdf

 ABA page - Residential Foreclosure Mediation Resources for ADR Professionals  http://www.abanet.org/dispute/mediation/resources.html

2010 Best Lawyers ADR Services, Inc. Neutrals

Victoria Pynchon

Ralph O. Williams, III

Eleanor Oths Barr

Denise R. Madigan

Eugene Charles Moscovitch

Click on logo for entire issue, including JAMS and other Best Lawyer Neutrals.

 Click on the image above for the National Annual Best Lawyers ADR Guide which includes not only colleagues at ADR Services but also throughout the Southern California ADR community including:

Deborah Rothman

Jeff Kichaven

Jay McCauley

Les J. Weinstein

Laurel G. Kaufer

Janet Rubin Fields

Gig Kyriacou

Douglas E. Noll

and many others whose names you'll recognize.

Thanks to google translate (daily destroying God's work on the Tower of Babel) I can bring you this mediation war story (loosely and imperfectly translated from a German mediation blog that I'm sorry I've lost the link to).

Before the trial of a wrongful termination case, the parties meet to mediate.  In separate caucus, the employee tells the mediator that he is working for a competitor.  The employee shares his concern that the revelation of his new employment could make him liable to his former employer for breach of the employee's non-compete obligation.  In a separate caucus with the CEO, the chief executive reveals that the  true reason for his failure to provide the contractually required advance warning of discharge was his fear that the discharged employee would learn of the CEO's on-going affair with his secretary, threatening the destruction of that valued relationship.  Back in joint session, the mediator adds "non-compete waiver" and "immediate departure" to the brainstorming white board.  The litigation promptly settles.

These are the party "interests" we're always talking about  -- one -- the affair -- that is strictly "irrelevant" to the legal proceeding and one whose revelation (working for a competitor) could result in a counter-claim for breach of contract and fiduciary duty against the employee and a cross-action against his new employer for tortious interference with contract and prospective economic advantage, as well as potential causes of action against both of them for the theft of trade secrets. 

If the mediator urges the CEO to exchange a waiver of the non-compete clause for the continued secrecy of his affair, has the mediator crossed the line from neutrality to advocacy?  If and when the company learns the former employee was working for its competitor at the time the case was settled, will it attempt to rescind that agreement on the ground that it was procured by fraud (the concealment of facts material to the waiver)?  And what are the duties of the company-attorney?  Doesn't the affair create a conflict of interest between the company and the CEO?  Does the attorney have the duty to inform the Board of Directors that its Chief Executive is waiving a valuable right in order to keep a relationship that is surely toxic to the conduct of the company's business a secret?

And what of the reputation of the mediation process itself?  Is there something unsavory going on here - something that is both "outside the law" and outside the principled reason communications in mediation proceedings are protected by the law as confidential, i.e., to encourage party openness rather than to permit party deception?

These questions should interest everyone involved in the mediation process and should trouble the sleep of mediators everywhere.  Because our process is conducted in secret, it is prone to abuse unless we - its practitioners - guard against deception and continually ask ourselves whether our interventions are in keeping with our obligation to be impartial.

Here are questions that we should ask ourselves whenever something in the back of our mind or a corner of our heart is telling us we might be doing more harm than good.

• If I were permitted to, could I share my decision with everyone?
• Is it legal?
• How does the decision make me feel about myself?
• Who does this decision negatively impact?
• Why am I making this particular decision?
• Have I clearly defined the problem requiring a decision to be sure I'm addressing the correct issue?
• Does this decision serve the company or me personally?
• Is the decision based upon facts consistent with fair play?
• Is the decision consistent with organizational values and culture or my own personal system of ethics?
• Is the decision fair and balanced to those it impacts?

from Ethics:  the Conscience of Decision Making

(cartoon generously provided by the brilliant Charles Fincher at LawComix)

O.K., I'm MUCH TOO CLOSE to this case but nevertheless intrigued by the following comments in the Recorder's recent article, Judge Puts on the Brakes While Heller Sides Mediate.

Judge Dennis Montali has canceled the first hearing on a liquidation plan in the Heller bankruptcy, pending the outcome of mediation talks between former shareholders and creditors.

Heller's creditors and at least four groups of shareholders appeared for their first mediation conference on Friday before Judge Randall Newsome for the U.S. Bankruptcy Court for the Northern District of California.

J. Scott Bovitz at Bovitz & Spitzer, a mediator in the bankruptcy mediation program in the Central District of California, said Montali is essentially telling everyone to stand down and cease fire.

"The man can read the tea leaves as good as any bankruptcy judge I know," Bovitz said.

"I speculate that Judge Newsome has told Montali there is some potential common ground in this case and we need more time to sort it out," Bovitz said. "I don't anticipate a long delay, because Newsome is not a patient fellow. That makes him an excellent mediator." 

Thanks to Diane Levin of The Mediation Channel for passing along Six things I'd Change about Mediation from the U.K.'s Mediator Magazine.

At present, if the total number of civil mediations were shared out evenly among accredited mediators, on average, mediators would manage fewer than one mediation a year.

Astonishingly, there are now half as many mediators as there are independent barristers in the UK. Even so, training organisations proliferate - and are encouraged to do so - and more mediators are accredited each week.

Let's be clear: this is a scandal. 

If 3% of trained and accredited mediators get any work as a mediator, I'd be surprised. The excuse that training mediators is a good way to spread the word about mediation, to my mind, stinks. Ripping off everyone who shows an interest in mediation - it hardly needs saying - is no way to grow the market. This brings me to the third thing I'd change: we must accept that there is no connection between training mediators in greater numbers and the throughput of cases in greater numbers.

As a post-script to that point, I should add that some organisations have already changed tack. Faced with the moral dilemma of taking money and delivering absolutely nothing, or ceasing to train until demand has risen to merit it, some organisations have a new wheeze. This is mediation as - and I quote - "a life skill." Life skills, in my view, belong to the fashionable genre of self-help and bring mediation into the orbit of New Age spirituality, bioelectric shields, energy cocoons and magic crystals. I find the life skill argument disingenuous and mildly embarrassing. This is a direction from which mediation should turn sharply away.

 

Read entire article.  Rinse.  Repeat.  Comment here.

Check out the range of opinions among litigators' clients on this still-hot topic in mediation circles over at the Business Conflict Blog (quickly becoming one of the most indispensable commercial mediation blogs on the web):  Should Mediators Be Expert in the Field of the Dispute?  Excerpt below.

Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe.  His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener.  He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do.  The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness.  “A lack of industry expertise has never caused a failure of the mediation process.

I must admit that when Tim Hughes (@vaconstruction) -- he of the Virginia Real Estate, Land Use and Construction Law blog and an avid ADR watcher -- tipped me off to this post, I read the question as asking whether mediators should be experts in the "field" of conflict - rather than in the industry in which the disputants are involved.

Here's my opinion (as if you didn't already know).  As Colin Powell says, the most important knowledge to have in international negotiations is the other guy's decision cycle.  I imagine the great predictor, the political scientist and Hoover Institute Fellow  Bruce Bueno de Mesquitas would say something along the same lines (see TED lecture below).  See also the NYT piece, Can Game Theory Predict When Iran Will Get the Bomb?

What is the "other guy's" decision cycle?  It is comprised of every interest he must satisfy and every person he is accountable to for the foreseeable (and probable unintended) consequences of that decision.  Personal injury attorneys turned mediators are well acquainted with the decision cycles of both Plaintiff and Defense counsel as well as with the interests, needs, and desires of injured Plaintiffs, on the one hand, and insurance adjusters and their supervisors on the other.  Employment attorneys turned mediators are also deeply knowledgeable about the decision cycles of counsel on both sides of the table (one usually specializing in employees and the other in employers) as well as with the interests, needs and desires of terminated, demoted, or harassed employees on the one hand and of employers - both large and small - who often feel as if the Plaintiff is little better than a highway robber.  Judges turned mediators are better acquainted than anyone else of the decision cycles of juries -- a jury verdict being the alternative to a negotiated resolution.

(Chart from Cultivating Piece)

You knew I'd come to my own "specialty" knowledge.  Some of it is industry specific -- insurance and  financial institutions, for instance, and the garment, manufacturing, health care, commercial real estate, construction, and technology industries.  Though my experience in these fields adds some value to my commercial mediation practice, what I'm most skilled at is knowing the decision cycles of commercial litigators and their business clients.  I understand, for instance, the clients' reporting relationships; the metrics against which their performance and that of their corporate superiors are measured; the impact of SEC reporting requirements in "bet the company" litigation; and, the effect settlements in nine or ten figures might have on upcoming plans for mergers or acquisitions. 

I can read a financial statement. 

At a minimum, I can ask the questions necessary to obtain the knowledge required to ascertain the interests that must be satisfied by both parties to transform the litigation into an opportunity to make a business deal.  And I know how to make the commercial clients happy with their attorneys' final resolution of the business problem burdened with the justice issue that brought the case into court in the first instance.

I am also schooled in the "field" of conflict resolution.  I understand at depth the cognitive biases --  universal tendencies in the way we think -- that inhibit rational decision making.  I know how conflict escalates and, more importantly, how it can be deescalated.  I understand the role emotion plays in decision making (particularly the emotion most common among business litigation clients - anger);  the gentle (and not so gentle) art of persuasion and, perhaps most importantly, the optimal negotiation strategies and tactics for the business problem at hand.

And, I know in the knuckles of my spine what keeps commercial litigators awake at night, worrying about the next strategic, tactical, legal or extra-legal move to make; how to explain to the client that the case has suddenly gone south; and, how to deliver that bad news to the client in a way he or she can hear it and successfully report it to the GC, the CEO, the Board of Directors or e ven the shareholders. 

I know this sounds like a lot of boastful self-promotion (it is).  Please don't take my word for it.  Anyone charged with finding, retaining and hiring a mediator to assist the parties in resolving a piece of hard-fought, sophisticated, complex commercial litigation would do well to check with his or her peers on any mediator's boastful self-appraisals.

This is what I recall of mediator-hunting, however.  I'd send out a list to my colleagues.  I'd invariably get back opinions that were all over the board.  He/she is great with clients but usually ends up splitting the baby in half.  He/she talks too much and listens too little.  He/she marginalized the client and made me look bad.  He/she charges $15,000 per day and is one of the go-to mediators for this type of case but I was unimpressed, as was the client.  This guy/gal can settle anything.  Brilliant.  Magical.  

So what's a beleaguered litigator to do?  Ask people you respect both inside and outside your law firm.  Ask how the mediator handles the "process dimensions" of the mediation.  Does he/she simply carry numbers and rationales back and forth between separate caucus rooms.  Can she give bad news to both sides.  Can he go beyond positional, zero-sum bargaining and into interest-based negotiated resolutions?  Is the client happy with the result and with the process?  After you've done this basic research, call the mediator yourself and ask him/her about the way in which she/he might handle the mediation of the particular matter you need to have resolved.   You should not only have the best information possible in making your choice, you should get a fair amount of terrific free advice and external brain-storming along the way.

I really just meant to cite the Business Conflict Blog and get back to revising The ABC's of Conflict Resolution - my second draft due on October 30.

So what's my answer to the question whether the mediator should have industry knowledge?  That answer lies, as most legal problems do, in the gray zone.  Industry knowledge helps.  But every commercial litigator knows that we can learn any industry if we have a basic understanding of how commercial enterprises work.  That's what I know -- commercial litigation -- and it is the reason I don't mediate personal injury or employment disputes with anyone below the rank of senior executive.  I don't know the right questions to ask and I don't know -- at depth -- the parties' or counsel's decision cycles. 

I can learn, but if you called me for a personal injury or employment mediator, I wouldn't recommend myself - I'd recommend someone like Janet Fields or Nikki Tolt at Judicate West (personal injury) or Deborah Rothman, Jay McCauley or Lisa Klerman at their own mediation shops (employment). 

For commercial mediation, I'd recommend the usual suspects (including, of course, myself) and Jeff Kichaven, Eric Green, Jay and Deborah, Ralph Williams (at ADR Services, Inc.), George Calkins and Jerry Kurland at JAMS (complex construction litigation); Les Weinstein (IP, particularly as an arbitrator); Mike Young (Judicate West and Alston + Bird); and, John Leo Wagner (Judicate West). 

I know I've left a lot of fine mediators out of this list but these are the ones who immediately spring to mind because I either have personal experience as a client or co-mediator or I have it on the authority of my husband, Stephen N. Goldberg, formerly at Heller and now at Dickstein Shapiro (author of the Catastrophic Insurance Coverage blog).

Enough!  Off to the real brains at hand -- Bruce Bueno de Mesquita at TED.

Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” -- a space in which “we can move around directly in our own lives and indirectly by touching the lives of the young and old around us.” Miall, Ramsbotham and Woodhouse, Contemporary Conflict Resolution.

What does the 200-year present have to do with conflict resolution week?  It reminds us that new forms never really completely replace the old ones.  We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity). 

Whichever dispute resolution mechanism you use, it should be much improved if you take up  juggling (as reported this week at Idealawg).

Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).

No brand of law-giver or enforcer has ever entirely left the scene.  Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators  (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog). 

And of course the gadflies (wolf protection lawsuits anyone? at  Point of Law). 

Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk).  We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People). 

We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).

And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).

My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109. 

My grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line ^[2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. ^[3]  Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More

asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.

Grandpa's first war was, well, the First and his second was the Second,^[4]  as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third. 

My imagined grandchildren, ^[6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) ^[7] and play many of the same games ^[8]  he did – hop scotch, jump rope and ring-around the rosy. 

Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'.  Hybrids will give way to fully electric (and perhaps hemp-powered) ^[9] vehicles (effective or defective) and though electricity will continue to be  generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. ^[10]

Law, politics, society and culture also exist in the 200-year present of conflict resolution.  ^[11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later?  Or do they weave our future together?

The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,

The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.

^[12]

Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. ^[13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own  business magazine -   ForbesWoman (my part in it here).  And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia.  See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.

My grandparents', parents' and step-children's 20th Century was dominated by genocide ^[14] on a scale and a technological precision unimaginable to our earlier forebears.  Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism.  We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.

Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations.  And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military. ^[15]

With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. ^[16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.^[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which

 provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.

 ^[18]

As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist). 

How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here). 

The Most Effective Conflict Resolution Technology is the Oldest

One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”

Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).

The winner of Axelrod's competition was a program named tit for tat.  Tit for tat was programmed to cooperate ^[19]  with its first encounter with any other programmed player.  It  rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. ^[20]

As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor.  According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry.  When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat. 

Laws and Lawyers

First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog.  Why first or important?  Know thyself.  Everything else follows that.

We don't "dis" lawyers here at the Negotiation Blog.  We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind.  Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyers was not an insult.  In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.

The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code. 

These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week).  ^[23] 

For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones.  ^[24]>

Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).

Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table.  See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.

I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e., 

shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.

Legal Rebels:  the Sky is Falling at Simple Justice.  Charon QC also weighs in on the ABA Legal Rebels project here.

Arbitration

Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. ^[25]

Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week.  The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").

18th Century Dispute Resolution Technology:  The (Inevitably Polarizing) Adversarial System

It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them."  If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.

As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them."  We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.

The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs."  Nor could he any longer be "outlawed or exciled or otherwise destroyed."  Nor could the King "pass upon him or condemn him." 

English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments.  Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog).  The motion? 

Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Id. (and ouch!)  On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors. 

Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails.  As Ken wrote in Conflict Revolution:

Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.

Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.

All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.

As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.

These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus. 

Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was named:  Martin Luther King, Jr.  - the arc of history is long, but it bends toward justice.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.

A big thank you to local mediator Steve Mehta for

By Steven G. Mehta

A big question in trial for lawyers to consider is whether to apologize for their client’s “alleged” conduct.  Many lawyers are reluctant to do so under the theory that it could lead to a greater chance of liability being imposed on them.  Recent research sheds light on this issue.

According to researchers at George Mason University and Oklahoma State University apologizing to a jury may lead more favorable results. The results of the study will be available in a the journal Contemporary Accounting Research.

Assistant accounting professors Rick Warne of Mason and Robert Cornell of OSU found that apologizing can result in lower frequencies of negligence verdicts in cases when compared to a control group receiving no apology or remedial message. The researchers hypothesized that apologies allow the accused wrongdoer to express sorrow or regret about a situation without admitting guilt. Alternatively, a first-person justification allows the accused to indicate the appropriateness of decisions given the information available when decisions were made.

“We found that apologies reduce the jurors’ need to assign blame to the [wrongdoer] for any negative outcomes to the client,” says Warne. “It also appears that an apology “influences the jurors impression that the auditor’s actions were reasonable and in accordance with professional standards.”

Continue reading here.

What???????????? 

This opinion -- Palmer v. State Farm - is wrong on so many levels that it's no surprise the appellate court ordered that it not be published.  The opinion therefore controls only the fate of the parties to the case and cannot be cited as authority.  The no-publication order does not, however, diminish my distress about the mediator's decision to file a declaration in support of State Farm's motion to enforce a formal settlement agreement that its insured refused to sign as contrary to the handwritten agreement drafted by the mediator during the mediation proceedings.  

The appellate court affirmed the trial court's enforcement of the post-mediation settlement agreement based, in large part, on the mediator's sworn declaration that State Farm's formal agreement accurately represented the one signed by the parties during the mediation --  a matter that, if true, should have appeared on the face of both documents.   See HANDWRITTEN SETTLEMENT SHOWS PARTIES' INTENT, CALIF. COURT FINDS for a summary of the Court's decision.

What's wrong with this opinion?  Let me count the ways.

In California, a mediator is presumed incompetent to testify under Evidence Code section 703.5.  A good thing, too, since mediators are bound by the confidentiality provisions contained in  Evidence Code section 1115 et seq. /1

Mediators are also required to be -- ahem -- NEUTRAL.  Why was this mediator providing a sworn declaration to support State Farm's case against the policy holder?  And does his drafting of the handwritten agreement at the mediation give him a personal or professional stake in its enforcement, thus further undermining his neutrality. 

I'm not going to mince words about this.  I believe it falls below the standard of care for a mediator to voluntarily provide a Declaration to the Court concerning anything anyone said during the mediation, including his opinion about what the parties an meant to say when they entered into a settlement agreement (an intuition that could only be based upon confidential communications).  I also believe that its below the standard of care for a mediator to voluntarily provide a declaration to one party in support of a motion against another party to the mediation.  The fact that the mediator provided a declaration in support of State Farm (and not the policyholder) is even more troubling when you consider the fact that insurance carriers are repeat players in ADR circles and hence a better source of business for mediators than single-player plaintiffs.

On the confidentiality issue, it is notable that the mediator-drafted agreement stipulated that:

The parties waive the provisions of [the] California Evidence Code relating to mediation confidentiality, rendering this agreement enforceable pursuant to . . . section 664.6.”  (Italics added.)

The language used suggests to me that the purpose of the clause was to render the written agreement admissible in evidence to prove its existence  -- "waive . . . mediation confidentiality [to] render[] this agreement enforceable."  I know it doesn't say that.  It says that the parties are waiving confidentiality  PERIOD.  It would surprise me if that's what the parties meant to do, i.e., open up to judicial scrutiny every communication uttered in the course of the mediation - in separate caucus and joint session.  Would a mediator be liable for an ambiguously drafted agreement that leads to the loss of mediation confidentiality for the parties?  I don't have an answer to the question but mediators might want to ask themselves whether they should be drafting the parties' agreements if they want their malpractice premiums to remain as low as they are today.

Hat tip to my husband Stephen Goldberg, who blogs at the Catastrophic Insurance Coverage Blog for the head's up on this. You should post on this one honey.  It gives you something else to rail against the insurance carriers about!

__________________

1/  It is not clear from the opinion whether the Court treated the mediator's declaration as one from an expert.  It does appear, however, that the mediator's declaration was in the form of a legal conclusion -- the formal written contract was the same as the handwritten contract -- testimony that is inadmissible to interpret the meaning the parties gave to the agreement at the time of contracting.  See the Construction Weblink Article Experts' Opinions on Contract Interpretation here by John W. Ralls of Howrey's San Francisco office.

Let me begin with a radical proposition the expression of which my colleagues assure me will doom my mediation career. 

Ready?

Attorneys and their clients do not know what type of mediation is best for them any more than they know how to cure their own cancer.

I've been told that "the market has spoken and it wants evaluative mediators."   I'm sure the cancer "market" would also like to speak to its physicians.  If I had malignant melanoma, I'd love to find a doctor able to cure it with rational argument, hard-ball tactics, and position-based negotiation.  Surely he can convince my cancer that it's wrong and cannot win the battle simply by replicating itself over and over again.  If he's such a good doctor, why can't he convince my adversary that it's just not right?!

You say the physician has specialized knowledge and experience in cancer treatment and knows better than I what will be the most efficient and effective medical protocol? Is my reasoning faulty?  Do litigators know how to "treat" their conflict resolution problem with evaluative mediation because they've experience success with it?  Maybe.  But how do they know?  Are they aware whether they "left money on the table" or paid more than the other guy was willing to accept?  Who might be in possession of that extremely valuable information? 

Uhhhhhhhhhhhhh, the mediator????

Let's talk to the social scientists about why people might prefer evaluation followed by a mediator's proposal.  According to a recent Fast Company article, Why Your Gut is More Ethical Than Your Brain, people would rather put their fate in the hands of someone they’ve been told is a rational decision maker when an "emotional" decision-maker would have delivered a better result.  The article at issue doesn't answer the question "why" but I have an educated guess.   We trust reason and distrust our "gut."   That's what we were taught in my scientific generation and we continue to trust these initial teachings even as science moves forward to prove that our feelings + our subconscious ("intuition") almost always make a better decision than our rational thought processes, which are generally simply rationalizations for what our "gut" decided without "us."  

So what's the take-away here? 

It is indisputable that one of the primary purposes of a settlement negotiation is the attempt to value an eventuality that cannot be predicted - the outcome of litigation.  But value it we must -- at least within some reasonable range -- considering the thousands (perhaps tens of thousands) of variables in play -- the settled or unsettled state of "the law"; the ability of each party to make their narrative coherent at worst and compelling at best; the location of the court where the matter will be decided - downtown Los Angeles; Santa Monica; or San Francisco -- cities with very different "deciders"; the ability of each party to withstand the economic burdens imposed by the litigation; the capacity for one party's counsel to "bury" the other's; the veracity of the witnesses; the historic record for victory or defeat for this type of case in that type of industry; the personality, politics, or idiosyncrasies of the Judge; and, even the time of year during which the case is to be tried, not to mention the skill and experience of counsel for each side.

To these uncertainties we must add the cognitive biases to which we are all vulnerable no matter how "rational" and scientifically-minded we are.  These cognitive "tendencies" include our inclination to seek out and believe "facts" that support our position and to avoid, ignore or discount those that do not (confirmation bias); our tendency to discount as unworkable, without merit or downright evil suggestions our opponent forwards (reactive devaluation); our capacity to create patterns and narratives where none exist (clustering illusion); and, our unfortunate weakness of buying our own B.S. (self-serving bias) to name just a very few. (See Diane Levin's recent post on these and other cognitive errors here)

Despite the difficulty inherent in evaluating the merits of one's own case (and of the mediator's attempt to value each side's chance of victory based upon no admissible evidence and the untrustworthy nature of both party's factual narrative and legal analysis) a mediator helping litigants and their attorneys settle a case must be capable of asking pointed questions that will counteract the parties' biases to some degree and help them understand the truly unpredictable nature of a law suit's resolution.

All of that being said, anyone who believes that this evaluative process is at the heart of a good mediation needs to spend some time with better mediators.  A truly brilliant mediator (and I am not here counting myself among them) helps the parties move beyond the very narrow issues raised by the litigation and past the spoils to be won or lost there.  A gifted mediator is able to help the parties ascertain their own as well as their negotiation partner's true preferences, desires and needs; to open the bargaining session up to include every item of value the parties have to exchange; and, to locate and resolve, for each party, the experience of injustice that brought them to the difficult and pricey decision to hire outside litigation counsel in the first place.

What we litigators tend to forget in the heat of our battles to win the discovery motion; prevail on our request for a pre-judgment attachment; procure the testimony we need for the silver-stake motion for summary judgment; or, write the winning Petition for Writ of Mandate or appellate brief, is that our clients want to make a savvy, sophisticated and durable business deal that leaves them feeling (yes, feeling) that the settlement reached does not constitute a gross miscarriage of justice.

That's the view from this side of the mediation table after five-years of full-time neutral practice and twenty-five of litigation and mediation advocacy.

Like the trial lawyer facing a jury, a skillful mediator facing counsel and clients must provide both the most educated and honest rationale for his or her valuation of a party's chances at trial; the most empathic response to the clients' many expressions of anger at the injustice of it all; and the facilitation of a commercial negotiation in which making the best business deal is of far more importance than proving one's "case" right.

Do choose a mediator able to open up the hood of your opponent's case (and your own); to kick the tires; and, to note the rusted places under the thin coat of a recent paint job.  If, however, "valuation" is the best your mediator can do, you need to raise the bar for excellence and experience the satisfaction you feel when your client says, "great job!  It's a good settlement and a fair one as well." 

Don't Let the Mediator Bully the Parties from Six Ways to Insure Your Construction Mediation Will Fail over at the Construction Law Musings Blog.

A mediator who is bullying you or your client to settle simply hasn’t gotten the knack of asking questions and creating opportunities. She’s still too used to wielding power. If it’s important enough to spend your day mediating, it’s important enough to tell the mediator that you do not want her bullying any of the parties.

I was co-mediating the final day of a construction dispute with twenty-five to thirty parties when my colleague lost his cool. By two in the morning, a single sub-contractor was holding all parties hostage to his refusal to settle even though he was alone in having achieved all but complete victory – the Plaintiff having agreed to exchange mutual releases to settle with him. Nevertheless, the sub adamantly refused to give up his right to bring a malicious prosecution action against the Plaintiff.

“He needs a woman’s touch,” my co-mediator suggested.

Male or female, someone needed to learn why this single defendant had become so intractable. A bit of questioning revealed that early in the litigation, the sub’s attorney had inadvisably assured his client that he could win a malicious prosecution suit. Counsel was not about to back down now, particularly after he’d been harangued by my colleague in front of his client. I was all but certain the sub had no intention of spending further money litigating the case. Why was he clinging to his right to sue? The three of us talked for 45-minutes while the rest of the parties waited. I don’t know what it was in that conversation that revealed the problem to me. I only know that at some point I realized that the sub could not justify the money he’d paid his counsel unless he emerged from the litigation victorious.

“You know,” I finally said, “you’re the only defendant who actually won here.”

“How do you figure that?” asked the sub, eyeing me with suspicion.

“Everyone else, no matter how unlikely their potential liability, had to pay the Plaintiffs to be released from the case. Your attorney is the only attorney who negotiated a settlement for nothing. He won!

And the case promptly (and finally) settled.

Remember that settlement is not about power or authority. It’s about influence and you cannot influence another human being by bullying him. You can only influence him by asking questions, listening carefully to the answers, and responding to the need he is expressing. Not only will hectoring fail to produce the desired result, it will usually trap the bullied party into a position he has no actual desire to maintain. Restrain the pitbulls and release the attentive questioners. Theirs is the Kingdom of Resolution.

And just in case you think my mediation advocacy malpractice series is picking on attorneys, here is ADR Professor Michael Moffitt's excellent article from the Harvard Negotiation Law Review, Ten Ways to Get Sued:  A Guide for Mediators (.pdf).  Here are the ten ways.  For an exhaustive analysis of each, read Moffitt's article.

1. Fail to Disclose a Conflict of Interest
2. Breach a Specific Contractual Promise Regarding Structure or Outcome
3. Engage in the Practice of Law
4. Engage in the Practice of Law Badly
5. Breach Confidentiality Externally
6. Breach Confidentiality Internally
7. Maintain Confidentiality Inappropriately
8. Advertise Falsely
9. Inflict Emotional Distress on a Disputant
10. Commit Fraud

There's also a (disturbing) "head's up" note in a 2006 BYU Law Review "Comment" that mediators may eventually be open to lawsuits for breach of quasi-fiduciary duties.  Despite noting the antipathy in the legal and mediation community in the past for imposing fiduciary duties to the parties, the Comment concludes by predicting that:

mediators may likely owe some level of fiduciary obligations to the parties in certain mediation proceedings--primarily fairness, impartiality, confidentiality, disclosure of conflicts of interest, good faith, and no false misrepresentation. This knowledge allows mediators to prepare for the trends of the near future, when mediation will likely take an established place among the professions, with the accompanying benefits and liabilities of such a position.

THE WRITING ON THE WALL: THE POTENTIAL LIABILITY OF MEDIATORS AS FIDUCIARIES, 2006 BYU Law Review 1033.

As every mediation advocate must know by now, the California Supreme Court has locked down mediation confidences from attack at every turn.  There can be no implied waiver of Evidence Code section 1119's protections and you cannot be estopped to assert it (Simmons v. Ghaderi) (.pdf of the opinion here). 

Your client may have been coerced into signing off on the agreement; may not have understood what she was signing; or her assent could have been induced by your opponent's material misrepresentations of fact.  Your client's insurance carrier may be guilty of actionable bad faith during the course of the mediation.  Too bad.  The mediation proceeding is given greater protection than given to penitents in a confessional.

But you can inadvertently expressly waive the protections of mediation confidentiality if you've carelessly crafted your own confidentiality agreement.

California's Second District Court of Appeal held in Thottam (.pdf of opinion here) that a party's confidentiality agreement did just that -- waived the protection -- permitting one party to introduce an otherwise inadmissible draft agreement into evidence for the purpose of enforcing an otherwise unenforceable mediated settlement agreement.

As the Court in Thottam held, Section 1123(c)'s requirement that all parties to a mediated settlement agreement "expressly agree in writing . . . to its disclosure," may be satisfied by terms contained in a writing other than the alleged settlement agreement itself, including a writing executed before a settlement agreement has purportedly been entered into.  Because the "draft agreement" at issue in Thottam did not contain 1123's "magic" enforcement language and because the term sheet drawn up during the mediation was not sufficiently certain to enforce in any event, one party to the subject probate proceeding objected to its introduction into evidence and to the admission of testimony concerning otherwise confidential statements made during the mediation.

Had there been no confidentiality agreement, the issue would have been controlled by Evidence Code sections 1115 et seq.; the "agreement" would have been excluded from evidence as non-compliant with section 1123; and, no evidence of statements made during the mediation would have been admitted into evidence. 

Here's the danger of drafting your own confidentiality agreements in an attempt to expand the scope of mediation confidentiality.  

According to the appellate court opinion, because the parties expanded the scope of confidentiality beyond that provided by the statute, the exception to the protection ("except as may be necessary to enforce any agreements from the Meeting") was broader than the enforcement exception contained in section 1123.  As one blogger cogently put it at the time, "the big print giveth and the small print taketh away."

I think it's safe to say that this result was pretty much completely unpredictable and that it was within the standard of care for counsel to expand the protections contained in section 1119  (for an example of the problems created by its relatively narrow confines, see mediator Debra Healy's comments and my response about the scope of mediation confidentiality in an earlier post in this series).

Post-Thottam, however, counsel must be extremely careful in drafting confidentiality agreements lest they inadvertently take away the protections the legislature created and the Supreme Court has so assiduously enforced.

In short, don't get fancy.  Just stick with the language of section 1119

That's not a summons and complaint for malpractice, is it?  Because of something you didn't know about ADR advocacy? 

C'mon!  ADR is all about avoiding litigation, not creating it, right?  The good news is that there hasn't yet been an ADR malpractice suit of note.  The bad news is, I see ADR negligence at least once a month and am holding my breath against the day lawsuits began a'poppin. 

To help you avoid ADR malpractice, here is just one of ten pitfalls to be covered in this series that can make you a malpractice magnet for disgruntled clients. 

1. write up a "term" sheet reflecting your mediated settlement agreement without including the "magic language" of Evidence Code section 1123
   1. absent this language, a party with buyer's remorse can resist the enforcement of a "term sheet" if he feels he was was coerced into signing it; entered into it based upon a misrepresentation of material fact made during the mediation; or, that it simply does not accurately reflect the terms the parties' orally agreed upon during the mediation
   2. use the magic language of Evidence Code section 1123 and your "term sheet" should be enforced and your client's bargaining partner precluded from introducing into evidence (pursuant to section 1119) any statement made by anyone during the course of the mediation, including allegedly coercive, misleading, or, fraudulent statements of fact allegedly inducing his consent.
   3. as Orange County mediator William J. Caplan points out in his lively 2005 article, The Quick Brown Lawyer Jumped Over the Mediation Traps, the "magic words" are “admissible,” “enforceable,” “binding,” and “subject to disclosure.”
   4. the cure (from Caplan again) is the following "belt and suspenders" clause:

The parties intend this Agreement to be admissible, binding and enforceable, and subject to disclosure within the meaning of those terms in California Evidence Code § 1123 (a), (b) and (c), and this Agreement is expressly not privileged from disclosure under California Evidence Code § 1119. In addition, if the formal Settlement and Mutual Release Agreement contemplated hereinabove is [e.g., not executed within ten (10) days of the date of this Agreement] this Agreement may be enforced by motion under California Civil Code § 664.6 and the court shall retain jurisdiction over this Agreement until performance in full of the settlement terms herein.

Below is an Orange County Superior Court form that satisfies the requirements of section 664.6 (providing an expedited enforcement mechanism for the settlement agreement) but which fails to recite all of the magic words including admissible, enforceable, and subject to disclosure.  So please don't trust any form other than your own!!  Even forms issued by the Courts. The fact that you are entitled to an expedited hearing under 664.6 to enforce your mediated settlement agreement does not mean that you will be permitted to enforce the agreement against your opponent's will.

SB-66 Stipulation For Settlement (CCP 664.6) - California

Of course the best way to avoid claims arising from buyer's remorse is to create a durable settlement that all parties will want to enforce.  That means avoiding agreements that your client enters into when he or she is hungry, angry, lonely (i.e., sidelined) or tired (HALT).  It also includes agreements that feel coerced by an overly aggressive mediator preying on the weaker of the two (or three or four) parties.  And yes, Virginia, there is always a more vulnerable party; all mediators recognize who that is; and, too many mediators make a beeline for that party's soft under-belly.

Another way to avoid challenges to the mediated settlement agreement include:

• bringing a fillable template settlement agreement (and these days, also a Stipulation for the Entry of Judgment in the event of default on a payment plan) that is a complete, final and binding agreement that contains the "magic language" of section 1123 that all parties execute before they leave the mediation session (no matter how tired everyone is and how much everybody wants to just go home and deal with the inevitable nit-picking over the relatively inconsequential terms of the agreement tomorrow). 
• not letting your fear that the "details" might blow up the "deal" you've spent so many hours negotiating.  You know how these deals go off the rails the following morning when your opponent begins to nit pick terms, often as a face-saving mechanism.  Let the mediator help you close the deal right there and now, assisting the parties in resolving the minor terms that can blow up in your face if left until tomorrow.

And speaking of tomorrow, I'll have Tip No. 2 for avoiding malpractice litigation arising from mediated settlement agreements.  Stay tuned!

For more posts on confidentiality in both California state and 9th Circuit district courts, click here.

Powerlessness and silence go together; one of the first efforts made in any totalitarian takeover is to suppress the writers, the singers, the journalists, those who are the collective voice.   - Margaret Atwood

Every year, a town in Japan named Taiji kills 2300 dolphins and small whales.  This year, that slaughter was halted for a single day because of the activism of the man who trained Flipper for television, Rick O'Barry.  Here's his account of the making of The Cove.   

Below us, just across a two-fingered inlet, was the Killing Cove, where 2300 dolphins and small whales are butchered every year. [/*] It's the place Allison and Alex had infiltrated in 2002, managing to cut the nets and free some 15 dolphins before the two were assaulted by fishermen and arrested.  The killing here is part of a cetacean slaughter that is unregulated by the I[nternational] W[haling] C[ommission], which has no jurisdiction over the smallest whales.  The Japanese don't even have to pretend it's for scientific research.  The government issues permits to fishermen and over 22,000 dolphins, porpoises, pilot whales and false killer whales are killed annually along Japan's coasts.  The meat is sold to school lunch programs and grocery stores and is terrifically high in mercury.  Independent random tests have found the dolphin meat to contain three to 3500 times the levels deemed safe by the Japanese Government.

What did Flipper's trainer want to do?  He wanted to stop the slaughter.  Here's where the Harvard Negotiation article on power in negotiation comes in.  I'll let the authors of the Harvard article speak for themselves.

In order to understand [why the less powerful sometimes prevail against their more powerful bargaining partners] one needs to analyze power as more of a relational and perceptional concept. The relational dimension is captured in Dahl’s definition that “A has power over B to the extent that he can get B to do something B would not otherwise do." For example, most non-governmental organizations (NGOs) are less resourceful than the World Bank. Yet the Bank can enhance the legitimacy of its programs by including NGOs. Over time, participating NGOs could influence the Bank’s agendas to some extent.  Thus viewed, parties with asymmetric resources may well share a mutually dependent relationship.

 It is also worthwhile to note that power sometimes lies in the eye of the beholder. A party’s decisions may be shaped as much by its perception of the situation as by objective reality.  Zartman and Rubin, in studying power in negotiation, define it as “the perceived capacity of one side to produce an intended effect on another through a move that may involve the use of resources.[A]s Fisher and Ury have pointed out, the resources a party owns do not necessarily translate into effective negotiating power, which is much more context-specific. The authors cite the example of the US, which “is rich and has lots of nuclear bombs, but neither has been of much help in deterring terrorist actions or freeing hostages when they have been held in places like Beirut"

The common tactics under a power-based approach include coercion, intimidation, and using one’s status and resources to overpower opponents. 

One tactic omitted from the list of power-based tactics is one of the most compelling -- the strategy used by Martin Luther King, Jr., Ghandi and, yes, anti-abortion activists -- bearing witness and shaming.

There are many moments of shaming and bearing witness in The Cove --   the moment when activist O'Barry holds his iPhone before the eyes of the Japanese official who has just told him that cateceans are killed quickly, with surgical precision (you can see that moment in the trailer here).  There's the day O'Barry, who has been permanently barred from IWC's conferences, walks in with a flat screen television strapped to his chest and silently moves in front of each row of delegates, showing them the video of the slaughter in the Killing Cover.  And then, at movie's end, the wrenching scene of O'Barry standing in the middle of a crosswalk in Tokyo, that same flat screen  on his chest, silently bearing witness as thousands rush past him and a few, half a dozen perhaps, stop in their tracks to watch the footage of the fisherman in the Killing Cove that he and his team gathered at the risk of their freedom and perhaps their lives.

It appears that the slaughter was halted for only a day.  Here's O'Barry's account of that day  (excerpt below):

I vowed to be back in Taiji when the dolphin killing began. I’ve often been here alone, or accompanied by a few environmentalists. Sometimes, I was able to talk a major media organization into sending someone.

When I got off the bus at the Cove this afternoon, I was accompanied by my son Lincoln O’Barry’s film crew, a crew from Associated Press, Der Spiegel (the largest magazine in Germany), and the London Independent.

I was talking with the police, as the international journalists stood around listening, suddenly a camera crew arrived from Japan! And then another! And then still another!

You have to understand that this is SO IMPORTANT. These TV stations have REFUSED to cover the story in Taiji for years and years. NOW, for the first time, they have shown up, with cameras rolling.

The Cove movie led to the strong action by the city of Broome, Australia, in suspending the sister-city relationship with Taiji. So now, the Japanese media are sitting up and listening, for the first time.

[A]ll Japanese will soon know about the cover-up that has occurred by the government in refusing to stop mercury-contaminated dolphin meat from being sold to unsuspecting Japanese consumers and children.

But Taiji can change this image of shame, if they want to. I will be telling them that the town of Nantucket used to be the capitol of the whale killing industry in the US. Now, it uses its history of whaling combined with whale-watching to market tourism very successfully. Whales and dolphins are worth more alive than dead. Taiji can do this, too. But the killing has to stop.

Alas, the cessation of the killing lasted only a single day.

 Once shameful national behavior has been exposed (a contentious or power-based negotiation strategy) the weaker parties (people vs. governments) must build their negotiating strength through trust.  As Power and Trust in Negotiation and Decision Making asserts:

Identification-based trust is grounded in empathy with another person’s desires and intentions and leads one to “take on the other’s value because of the emotional connection between them.”  It often exists among friends. Fostering understanding and friendly ties may therefore be a step to engender identification-based trust. For example, Reagan and Gorbachev developed a cooperative relationship in the late 1980s partly because they had repeated face-to-face talks over the years.  Reagan also sought to cultivate a non-hostile atmosphere in these talks by appealing to common interests, actively diffusing tensions and using his sense of humor. Because friendship and liking tend to generate trust and assent – sometimes in a subconscious fashion – Cialdini observes that salespersons often befriend their customers before promoting their products. Trusting someone in certain situations may thus come with risks of manipulation or exploitation

In asymmetrical power relationships, the building of trust among activists is necessary for the formation of a grass-roots coalition capable of overwhelming more powerful parties (perceived economic and national interests as well as that most powerful of impasse creators:  the status quo) with passionate commitment to an idea and the hope that the idea can be made a reality.  

O'Barry's documentary is a call to action that asks us to respond to our "better angels."  If enough of us hear the call and respond, there is no power that can stop this movement to stop the killing. 

As Martin Luther King, Jr. once said, "the arc of history is long but it bends toward justice."

______________________

The Harvard Negotiation article is a gift from Don Philbin who directed his Facebook readers to  Power and Trust in Negotiation and Decision-Making:  A Critical Evaluation at the Harvard Negotiation.  If you have any interest whatsoever in the dispute resolution techniques of negotiation, arbitration or mediation and you're not following Don (whose Facebook page is here and whose tremendous LinkedIn Arbitration and Mediation Group is here and whose group blog Disputing is here) you're missing the Mother of All ADR Aggregators and your life is the poorer for it.

*/  There were reports that international pressure caused the suspension of the annual dolphin hunt but the linked article from the Japan Times suggests that it resumed on the second day of the season on September 2.

Someone recently told me that you can't argue with a story, only with a position or another argument.  That's why narrative is such a powerful impasse breaker and why asking diagnostic questions, which elicit stories rather than arguments, so often bridges gaps between the parties that yawn as wide as the Grand Canyon  That's why I'm listing Asking Diagnostic Questions as the second most powerful means of breaking negotiation impasses.

Professor Leigh Thompson of the Kellogg School of Management at Northwestern University has written that in controlled experiments, only seven percent of all negotiators ask diagnostic questions when to do so would dramatically improve the outcome of the negotiation.  

Diagnostic questions are those that reveal your bargaining partners’ desires, fears, preferences and needs. Though your bargaining partner will never reveal its true bottom line, it may well acknowledge that it places a far lesser or higher value on the subject of litigation  – real property, for instance -- than you do. And though your adversary will never acknowledge the rectitude, nor even often the good faith, of your legal or factual position, she may easily disclose that she needs the money she seeks to infuse capital into her business, to pay back debts, to put her children through college or to acquire much-needed catastrophic health insurance.

You may also find that your bargaining partner is willing to disclose whether he is risk averse or risk courting and whether his predictions for the future of an enterprise – yours perhaps – are more optimistic or pessimistic than your own. Once you learn what your opponent wants, needs and prefers, you can commence – or reconvene – a negotiation that is more tailored to your adversary’s desires; one that will increase the number and value of items both of you have to exchange with one another.

Just a few examples from my own practice:

• a case concerning the repayment of over-paid health insurance benefits to physicians settled at a number the defendant said she would never pay when the Plaintiff revealed the existence of an agreement between it and a board member that no one else who was overpaid would get a better deal than he had.
• a case concerning the dissolution of a partnership settled when I asked Partner A what his valuation of the enterprise's inventory was in a case to dissolve the partnership.  Because he placed a far lower value on that inventory than did Partner B, Partner B (who planned to continue in the import-export business)  was happy to accept A's valuation, offering to purchase it from him on the spot (and agreeing to a lower valuation of the good will of the partnership business than he'd earlier been prepared to acknowledge).
• a property damage case settled when I asked the Plaintiff, in separate caucus, what he planned to do with the proceeds of the settlement.  The defendant, who "knew someone in the business," was able to obtain the item Plaintiff wanted at a lower cost than Plaintiff could have procured it, bridging the gap between the parties' negotiating positions.
• a patent infringement case settled when I asked the Plaintiffs what they were afraid would happen if they agreed to give the alleged infringer a license to manufacture and market the allegedly infringing product.  Plaintiffs said they believed the market would "get really hot" in three years time, allowing the infringer to make a killing on their technology.  When I asked the defendant what he thought about Plaintiffs' suspicions, he said he planned to phase the product out of his product line within three years.  I suggested that the defendant agree to a graduated royalty which would require him to pay an unusually high percentage of its sales during the years Plaintiffs were convinced he'd be selling "their" product and at a time when Defendant swore he would not. 
• In a lemon law case, I asked the Plaintiffs to tell the mobile home manufacturer to explain why they'd purchased the $200,000 vehicle in the first place.  Plaintiff's answer so undermined the defendant's "buyer's remorse" theory of the case that the matter settled quickly thereafter.
• I asked a perplexed defendant why the Plaintiff had chosen to sue it out of the entire universe of Plaintiff's competitors.  Defendant quickly responded:  "because we have better people, more talent and potentially better technology.  Plaintiff wants to remove us from the market"  I thereafter brokered a deal involving a joint venture between the two companies using company A's talent and company B's far larger distribution network.

As you can see from these few examples, diagnostic questions break impasse on "pure money" cases, as well as in those where the parties more or less obviously have something other than money to trade.  Once again, it is critical to remember that no one wants money but everyone wants something that money can buy.  Ask the ultimate reporter question about your negotiating partner's fears, desires, wants and needs -- WHY? -- and you will see impasse dissolving before your very eyes.

With apologies to "staying on topic" purists, I give my Lit Major readers the literary passage that comes to mind whenever I think too long about asking questions:

try to love the questions themselves as if they were locked rooms or books written in a very foreign language. Don't search for the answers, which could not be given to you now, because you would not be able to live them. And the point is to live everything. Live the questions now. Perhaps then, someday far in the future, you will gradually, without even noticing it, live your way into the answer.

Rainer Maria Rilke, Letters to a Young Poet.

I cannot recommend John DeGroote's Settlement Perspectives blog too highly or too often.  This week he praises CPR's new Early Case Assessment Guidelines.  Praise from John is hard to come by.  I join in his comments below and suggest that all my readers click on the link below for his excellent commentary.

The International Institute for Conflict Prevention & Resolution, known also as the CPR Institute, has recently published CPR’s Early Case Assessment ; Guidelines (2009), which are designed to “set forth a process designed to help businesses decide early on how to manage disputes, including identifying key business concerns, assessing risks and costs, and making an informed choice or recommendation on how to handle the dispute.”  They certainly meet their objectives.

Continue reading CPR Publishes Early Case Assessment Guidelines here.

Ralph Williams August 2009 ADR Tip

_______________________________________________

When 50-50 partners break up, the Closed Dutch Auction is an effective way to set the buyout price. The partners exchange sealed bids stating the price at which they will sell their 50% share. The highest bidding partner "wins" and buys out the "loser" at the "loser's" price.

The price set by each partner must be realistic, because if he "loses", the partner will have to sell at the price he set. Setting too low a price has a double adverse effect; the "losing" partner will be the seller at the lower price.

Ralph O. Williams III
ADR: 310.201.0010

Some people are so dangerous and some situations so volatile that restraining orders are of little use.  Consider this tragic tale of the courthouse shooting of a woman who had "secured restraining orders that prohibited [her former husband] from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited [him] from being 'within 100 yeards of any firearm' while in the presence of [his ex-wife] Eileen and [the couple's] children."  Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.  Here's the appellate court's summary of the facts:

Eileen and Harry separated in October 1993. Harry failed to comply with orders of the family court relating to spousal and child support, and Eileen sought redress in the family court on various occasions. Harry became verbally abusive toward Eileen. On at least three occasions prior to September 1, 1995, Eileen informed the bailiff in one department of the family court that she feared Harry and believed he might attack or kill her in the courthouse.

On at least one prior occasion, the bailiff searched Harry for weapons before permitting him to enter the courtroom. Eileen also previously had provided the bailiff and a judge in the family court with copies of letters and telephone messages in which Harry threatened to kill her. Eileen had secured restraining orders that prohibited Harry from possessing or carrying any firearms, that ordered him to turn over his firearms to his lawyer, and that prohibited Harry from being “within 100 yards of any firearm” while in the presence of Eileen and the children.

On September 1, 1995, Eileen appeared in department 27, one of the courtrooms hearing family law matters at the Central Civil Courthouse. Eileen and Harry were directed to proceed downstairs to department 1A. As she reached the second floor of the building, Harry retrieved a loaded .38-caliber revolver that had been concealed in his clothing and shot Eileen in the chest at point-blank range. Their daughter Lisa witnessed the shooting. Eileen died soon thereafter.

Power Cannot Protect Us

In my last post I posed the question whether a Civil Harassment Restraining Order is "better" for people who are living in fear of another than a mediated agreement between those people.  From the story of Henry Zelig and his family above, you can guess my own answer.  A restraining Order cannot protect us.  If we are not dealing with a crazed maniac (in which case we need to disengage and perhaps even hide rather than summoning our stalker to court) the parties' voluntary resolution of their dispute offers much greater protection for the future.

As lawyer, mediator, and author Ken Cloke writes in Conflict Revolution,

Power contests . . . produce winners and losers, destroy important relationships, and generate a great deal of 'collateral damage.'  Power also encourages corruption in those who use it, and blind obedience, resistance, and revolt in those it is used against.  Resort to power-based solutions, therefore stimulates future disputes and makes it nearly impossible to change without experiencing major conflicts.

Cloke thinks as little of rights-based solutions to conflicts as he does power-based solutions.  He writes,

[R]ights-based processes rest on bureaucracy, operate by control, and resolut in compliance . . . Rights-based approaches encourage alienation, resulting in personal cynicism, apathy and uncaring.  Neither prevents or transcends chronic conflicts, or seeks to dismantle them at their systemic source.

(you'll notice in the Gates-Crowley dust-up that "personal cynicism, apathy and uncaring" are the best the population is doing following President Obama's appeal to a rights-based analysis of the situation, i.e., that the matter reflects racism /* more than it does temperamental outbursts)

The better way?  Cloke suggests that both power- and rights-based means of dispute resolution have given way to a better way of resolving conflicts

based on interests, using informal problem-solving, facilitation, open dialogue, collaborative negotiation, and mediation.  Interests reflect not merely what people want, but the reasons why they want it.  Interest-based processes therefore do not require winners and losers, are able to prevent, reoslve, transform, and transcend conflicts at their chronic source, support collaborative, democratic relationships, and encourage systemic change.

You may be saying not only that that is quite an order, but it is a solution only for dewy-eyed optimists who do not understand the "real world."  I can only tell you what I told my civil harassment parties as they made the decision whether to participate in mediation or not. 

"Everyone," I said, "tells me that the other side will never see reason, that the matter cannot be settled, that the parties need a ruling from a Judge and an Order they can enforce against another.  And yet every time I mediate a dispute like this -- and I mean everytime -- the parties are able to settle their differences amongst themselves by way of agreement and the result is a far more satisfactory and durable solution for everyone."

But you don't need to take my word for it.  Download the Middle and High-School Peer Mediation materials and use the process yourself.  You'll be surprised at the results and happy you did.

__________________

*/  I do not mean to diminish the role race played in this dispute, simply that a rights-based race-conscious response by the President did nothing to resolve it.  As Cloke wisely notes in his Introduction:

[E]very conflict takes place not only between individuals, but in a context, culture, and environment, surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people; at a particular moment in time on history; on a stage; against a backdrop; in a setting or milieu.

Because our history of slavery and racism is so shameful a part of our history, we too often either suppress its role in conflict entirely or raise it up as the primary focus of our attention.  Neither is "correct."  Hence the circles we continue to run in whenever race is part of the context in which conflict erupts.

I'm happy to see that Obama has asked Gates and Crowley up to the White House for a beer.

Breaking a longstanding tradition of ignoring racial conflict, Obama has officially invited Cambridge police officer James Crowley and Harvard professor Henry Louis "Skip" Gates, Jr., to the White House for a beer and a bit of conversation about the incident. Obama's hope is that the debacle can morph into a "teachable moment" for everyone, and be brought to a conclusion that will allow the nation to focus once again on providing health care to all its citizens. Latest news has it that Skip has accepted the offer. We're excited to see the transcript of that chat, if it's released.

This is just what Harvard law professor Robert Mnookin, the chair of Harvard’s Program on Negotiation, recommended.

The Wall Street Journal Law Blog in Gatesgate:  Might Mediation be the Answer, noted the Boston Globe's commentary that :

Pride seems like an insurmountable obstacle sometimes. On one hand, you have a black man who has withstood taunts from other blacks for working with The Man and achieving success in mainstream society. On the other hand, you’ve got an officer who is sworn to uphold civil society, dealing with, in his mind, someone who is being decidedly uncivil. How do you get both sides to admit they maybe went too far?

Responds Mnookin:

I would ask each is if they would find it valuable to have an opportunity to really explain to the other person their perspective, to really make it clear what their perspective is, and as part of that, would they be willing to take in the perspective of the other. . . I certainly think there is hope that professor Gates and this officer could sit down together and have a constructive conversation where they each came to understand better the perspective of the other — and themselves.

And if you think we don't all need the lesson the friendly White House beer should provide, check out the 72 comments to the WSJ Law Blog post - discouraging indeed.

Hat tip on the Wall Street Journal Law Blog post to twitter negot8or Jeff Gordon who blogs on negotiation at LicensingHandbook.com.

It's good to step into a small claims or limited jurisdiction court from time to time to see how ordinary people's disputes are resolved, usually without counsel. 

Yesterday, as I sat in the small claims department of a local branch court, I wondered why the one-hour court trial I was observing hadn't been resolved in mediation.  Both parties to the fender-bender resulting only in property damage admitted they "hadn't been looking" when one pulled out of a parking spot and the other backed into him. 

The damages didn't require an adversarial process either.  There were quotations for repair on both sides as well as estimates of the vehicle's fair market value.  It was plain that the plaintiff had used comps that weren't truly comparable -- luxury cars vs. his own stripped down model. 

I had to leave before the Court rendered its judgment but I was pretty sure the Plaintiff wasn't going to understand why he'd lost (the result I assumed).  He spoke the language poorly and had a weak grasp of the proceedings going on about him.  It is on occasions like this that I believe mediation is better able to deliver justice than the court is if you define justice as a fair result arising from a fair procedure that all parties understand and are capable of a meaningfully engagement with. 

Before the judgment was rendered, the clerk whispered in the Judges ear that the "mediator is here; with a trainee and a law student."  He took a break to tell the (unrepresented) civil harassment parties that "there is a mediator in Court willing to help you resolve your dispute without charge."  I introduced myself briefly, along with my "assistants" as the Judge told the assembled parties that it's difficult to obtain an injunction (burden of proof:  clear and convincing evidence) but a very bad result for any defendant against whom one is granted.  The Judge did a good job, I thought, in quickly instructing the parties on the "up" and "down" sides of using the adversarial process instead of mediation, assuring them all that they could return to him for a judgment if the matters didn't settle.

These are people, not lawyers, and people's disputes rarely fail to settle when they're able to tell their story in an atmosphere of hope and safety.  When their "opponent" listens to them respectfully for the first time ever.  When they don't feel as if the police officer or court official or social service agency is listening with only half their attention.  They speak quickly to me outside the courthouse door when trying to decide whether to use my free services or have the day in court they've already paid for -- filing fees and costs of service - never a small expense for the people who find themselves here, hopeful and afraid.  They thrust their documentary evidence at me in the hallway.  If they don't get it all in right now I may not listen to them later.  They are strident or trembling; self-righteous or humble, but none of them truly believe anyone is going to actually hear and understand their predicament.  

I suggest they try to resolve the matter by way of agreement.  I assure them that I will not permit them to feel unsafe; telling them they can ask for a break the very moment they begin to feel uncomfortable.   I will follow them out of the conference room and we will talk about what is troubling them right away.  No, now is not the time to tell their entire story but that time is near.  All we have to do is take the elevator up to the next floor where the ADR office and its single meeting room are located.  I assure them again that they can come back to the Court later that day if I cannot help them resolve their dispute themselves.  They are all of the firm belief that they will be back in court.  The other side is "lying," ruthless, malicious, and will will attempt to manipulate me, the mediator. 

Mediation "will never work," they say to a person.  And yet, the woman in the black suit is beginning to seem less threatening, more approachable, more hopeful, than the Judge in the polyester robe.

O.K., they agree.  They will give it a shot.  I'm so earnest, I sometimes feel that they do it for me as much as for themselves.  That's OK, they have no reason to hope yet.  It is enough that I do.  I am undeviating in my faith that when I call upon people's higher angels, they will respond.  I take pride in every individual willing to sit at a table across from their adversary and have a conversation.  Lawyers often won't do it.  Representatives of Fortune 500 corporations demur.  Nations refuse the offer.  Yet these people, nearly defenseless, are  brave enough to sit with the enemy and will, I know, also be wise enough, honest enough, and respectful enough, to take their destiny into their own hands and make a better decision in conversation with one another than any third-party "decider" possibly could.

Tomorrow:  the mediations.

The statutory basis for Civil Harassment Injunctive relief is here, along with at least one case holding that a single act of battery that occurred in the past and does not present a credible threat of future violence does not support the issuance of a civil harassment restraining order or injunction.

Here are some resources to assist individuals who believe they are victims of civil harassment:

How to Obtain a Civil Harassment Order (prepared by UCLA)

California Courts Self-Help Center:  Civil Harassment

County of Los Angeles (Long Beach) Pamphlet on Civil Harassment Orders

Amador County Superior Court Information on Civil Harassment Orders

Santa Clara County Superior Court Information on Civil Harassment Orders

Sacramento County Superior Court Information on Civil Harassment Orders

San Francisco County Superior Court Information on Civil Harassment Orders

Shasta County Superior Court Information on Civil Harassment Orders

Marin County Superior Court Information on Civil Harassment Orders

Fresno County Superior Court Information on Civil Harassment Orders

Los Angeles County Superior Court Information on Civil Harassment Orders

WomensLaw.org Information on Restraining Orders

At the close of the year, our good friend John DeGroote at Settlement Perspectives asked whether mediators' proposals had lost their utility.  Now that parties "know the mediator's proposal is coming," he wrote,

savvy negotiators angle for an advantageous impasse rather than a settlement. Compromise is no longer the goal of the mediation exercise; instead it becomes a play to the “neutral,” whose power to craft the mediation proposal will make her the real decisionmaker:

• In cases where the mediator’s proposal will be based on who will pay what, the parties — or worse yet, one party — will spend valuable time and effort constructing an impasse when, in the absence of a mediator’s proposal as a fallback, he might have actually achieved a compromise settlement; or

• In cases where the mediator’s proposal will be based on the value of the case, no one has an incentive to be candid with the mediator — so positions become more important than interests; or

• In cases where the parties aren’t sure what will drive the mediator’s proposal, they dig into their positions and hope for impasse — with the most likely result being a mediator’s proposal predicated on those positions.

Just yesterday, a prominent local IP litigator, trial lawyer and deal-maker Robert J. Rose of Sheldon Mak Rose & Anderson graced the IP ADR Blog with a guest post on the utility of mediators' proposals here.  As Rose notes:

A reluctant plaintiff will make a large jump if the money is really “on the table.”  Defendants will come up with money they otherwise deny having, if it means that the case is really over.  It also eliminates reactive devaluation.

For those who skipped social psychology in college, reactive devaluation is what every lawyer is taught in the first year of practice, if not earlier.  "If the other side wants it," said my first mentor, "you don't, even if it seems like a good idea to you."  With that admonition ringing in the ears of every litigator, the need for mediators is obvious.  Given the dangers cited by DeGroote, however, the mediator's proposal may now be simply another way to "game" the mediator. 

I have two short stories to illustrate the reason I re-direct the parties to bracketing when they ask me to make a mediator's proposal. But first, let me explain that I am one of those mediators who used my "proposal" option to put a number on the table I thought both parties would accept even though it would be a stretch for both of them.  I usually tested these assumptions in separate caucuses by asking each side "if they came down to $X would you come up to $Y."  When the numbers didn't overlap, I'd gauge how much pain there might be for both parties to bridge the gap, along with other entirely subjective opinions such as:

• how invested each side was in walking away with a settlement that day
• how firm each side was in their assertion that they would not go below or above a certain number
• whether either attorney needed help in bringing a little more reality to their clients before the parties would be ready to accept a proposal by the mediator; and,
• how much "street cred" I'd developed with the parties personally so that they'd accept my estimate of the settlement price-point even if they wouldn't accept their own attorney's advice /*

The first time I felt manipulated into making a mediator's proposal that wasn't the best both parties could do occurred at the close of a particularly fractious commercial mediation. In the presumed Zone of Potential Agreement , my proposal was high on the side of the Plaintiff because I felt that the defendant had more "give" than did Plaintiff's counsel. 

I made my proposal and both sides accepted.  When I walked into the defense caucus to tell counsel that he had a deal, however, I was met with a burst of laughter, the clapping of hands and the following statement:  "I was prepared to take less; that's a great deal.  Thanks so much."

Everyone Lies to the Mediator

That was the hardest lesson I'd had to date in the truism that EVERYONE lies to the mediator.  You do not get to lie to the mediator twice, however, so I caution anyone who's feeling that she put one over on the mediator either to keep it to herself or never to hire that mediator again.

Still, I took a lesson from the attorney's merriment.  I realized immediately that he was not the only, nor the first, attorney to manipulate me.   He was simply the only one to let me know it.  I don't like being manipulated.  But that's what litigators are trained to do.  We call it "persuasion."  Still, I didn't like the look of my mediator's finger prints on that settlement, one that now appeared unduly influenced by my credulity.  

So that's reason no. 1 -- an extremely strong reason no. 1 - why I don't' like to make mediator's proposals and why counsel might ask themselves whether they want to continue asking for them.

"If We'd Wanted a Third Party to Decide, We Would Have Arbitrated This Case"

The quote above is from an attorney who represented one of the parties in the largest and most sophisticated commercial case I've mediated to date. We were at the end of day two and the parties -- who had traveled great distances to meet in a neutral city -- were nowhere near a landing point.  I was a sufficiently experienced mediator to land the case, but new enough to feel as if I'd run out of options when I suggested making a mediator's proposal.  

"I didn't hire you to have a third party make my decision for me," said counsel.  "If you want to get the parties closer together, why don't you suggest a bracket?" (for a explanation of bracketing, see my colleague Ralph Williams' article Introducing Deal Points - the Basics.)

I'd used brackets as a means of testing the parties' true distance before that day ("if he went to $X would you come down to $Y?") but I'd never made a mediator's proposal that was a bracket, i.e., "I suggest that the defendant put $X on the table if plaintiff will reduce its demand to $Y."

Although we didn't settle the case that day with a bracket (it took four full months of follow-up telephone negotiations to do that) I took counsel's point to heart.  The parties don't hire me to make a decision for them.  They're much happier when they get to make the decision themselves.  Even though the parties do decide whether to accept the mediator's proposal, it hasn't come to them as the result of their own hard work.  That being the case, the agreement reached is far less durable (subject to failure based upon nit-picking deal points after the agreement has been reached in principle) and far less satisfying than one achieved without the mediator's thumb on the scale.

I decided to stop making mediators' proposals more than two years ago.  In all that time, however, I've never refused to make one.  Rather, I've suggested alternative ways of achieving resolution, at least one of more of which settled the case in every case where the parties asked for a mediator's proposal.  

I'd like to hear thoughts on these points -- manipulation and party satisfaction -- from my litigator readers as well as my mediator readers.

More mediator thoughts on mediator proposals here:  The Mediator's Proposal at Mediation Meditations.

________________

*  I say this with the following caveat:  I would never attempt to influence clients to do something other than what their attorneys advise.  From time to time, however, the attorney needs to make the mediator the "bad cop" in the negotiation so that the client will not feel as if the attorney is no longer fighting for his interests.  I only play "bad cop" with the attorney's advice and consent.  My job is to get the settlement concluded making the attorneys look good, not bad.

Need CLE Credits? Mark your calendars!

The American Bar Association Section of Litigation will hold a live teleconference and webcast on July 14, 2009 titled “Deal or No Deal: Improving the Odds of Successful Mediation.” Reinsurance and Insurance expert Katherine Billingham from KB ReSolutions, Inc. and Randall Kiser from DecisionSet will present at the event. Randall’s article Lets Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations was featured recently in the New York Times.

Donald R. Philbin, Jr., friend of this blog and adjunct professor at Pepperdine’s Straus Institute for Dispute Resolution will also speak at the event. Here are two excellent  papers written by Don:  The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation published in the Harvard Negotiation Law Review and  Deal or No Deal? or Perhaps a Better Deal? The Impact of Improved Information published by CPR.

Find out more about the event here.

JUNE 9, 2009  |  FORUM

When It Comes to Joint Session Negotiations, Talk Isn't Cheap

By Victoria Pynchon

Whether parties to litigation should engage in joint session bargaining at some point in the process is a hot topic at the moment because joint session practice is nearly a dead letter in one of the most active and sophisticated mediation markets: Los Angeles.

Most attorneys do not like to begin their mediated negotiations with a joint session and neither do many mediators. The reason most often given is everyone's desire to avoid a polarizing set of zealously adversarial presentations.

The joint session, however, was never meant to be a mini-trial or reiteration of the parties' adversarial positions - positions with which they've been living, and defending their clients against, for weeks, months, years, even decades. The joint session was designed to give the parties with the dispute - the clients - the opportunity to brainstorm mutually acceptable solutions to their undeniably mutual problem: the sinkhole of litigation.

The news for mediation advocates (litigators and trial attorneys) is that avoiding joint sessions may deprive the parties and counsel of the "small talk" necessary to put the parties into a collaborative, even generous mood.

Click here to read the entire article

Here's a copy of the Judgment Confirming Final Arbitration Award.

Comment later.  In the meantime, Money Money Money from Cabaret.

Worth reading from last week's Mediator blah blah blog (the Lord Chief Justice arms himself with a hammer); just in case you missed it or didn't download the .pdf as I just did this morning.  Thanks Geoff!

Let us take a blank sheet of paper and imagine that we are trying to create a system which would provide a satisfactory means of resolving civil disputes, bearing in mind, without being over dramatic, that in the end, it becomes almost inevitable that some civil disputes will end up in criminal activity. I do not think I am exaggerating.

A few years ago I was taught a lesson by a very intelligent young woman in one of our County Courts. We were talking of the cost – the exorbitant cost as it was then - of taking proceedings for very small sums of money. She explained to me that the cost of just starting the proceedings would represent her children’s shoes – she thought this a disproportionate cost. She knew areas of the City where her husband could go and find someone who would throw a few bricks through a window for £50 – no doubt she was right. And, perhaps, that would be more effective, she suggested than a judgment and getting back the compensation. A little self-help could end up with a brick being used against an individual and a few bricks being thrown back in return.

In short, a civilised community has to provide a system which means that those in dispute can refer to an independent tribunal for a decision. It is a further requirement that the system should actually exist and be capable of being used. If court fees are disproportionate or if legal fees are disproportionate the system is not open to those who cannot afford its processes.

My experience in practice at the bar was that some of my clients wanted their disputes sorted out. They had tried to sort them out before they got to the stage of seeing a solicitor and going to counsel. Others of my clients, or should I say, it was always my opponent’s clients who were unreasonable, didn’t want to sort the dispute out at all. There were all sorts of reasons. One is that very human characteristic sometimes but not always an attribute, the indomitable bloody mindedness of the bull dog.

So that on your sheet of paper the system which we are creating has to cater for both those who wish to settle and those who do not. If both sides want to sort out their dispute, and they have tried and failed, being sensible people, their next step would not be to come to lawyers, but to go and ask someone they trust to try and sort out their dispute, to see where there are points of disagreement and points of agreement. Let’s give it a name. Why not call it “mediation”? A successful mediation is a wonderful outcome. But with the best will in the world, it may not always happen. So you have to have a formal system.

You also have to have a formal system when one side or other to the dispute simply has no intention of sorting it out save in court and at the end of a protracted and expensive court proceeding. That is more troublesome. That may be the party with pots of money trying to squeeze the party with modest means away from the court process. That may mean that the party with real merit in his or her case is deprived of the proceeds of litigation for many years to the advantage of the intransigent party. It may be that the intransigent party is entirely justified and believes that there is no form of mediation which would be acceptable either to it or indeed in the end to the other side.

Now time and time again, in practice as a barrister and now as a judge, I have been perfectly well aware that if only the parties had come together at an early stage, long before they saw their counsel, long before they got to the door of the court, they could have resolved their dispute at a fraction of the cost and without the emotional expenditure and commitment of time and energy required by the litigation. One of the ways I used to try to persuade clients to settle was to remind them of a Chinese curse – “may you be involved in a litigation in which you are in the right.”

One vivid memory is a boundary dispute, or rather a dispute over a garden. My opponent and I turned up at the County Court armed with an abundance of authorities because we had to address limitation periods, laches, injunctive relief, indeed just about every facet of civil justice. In the end we negotiated a settlement in which he and I, not the judge, went to the land and armed not with books but with hammers and stakes literally pegged out the property into equal halves. The case was settled. In truth my opponent and I had acted as mediators. How much better for everyone if the mediation had happened much earlier.

Can we just take a long term view? Every few years, or about every ten years, there is a great hullabaloo about the cost of civil litigation. Arbitration, after all, is a system of avoiding the court process. Do you remember when employment tribunals began? These were to be informal meetings at which the opposing parties would put their cases to a tribunal, almost a form of palm tree justice.

Consider now how much more complicated and expensive the processes have become.
I do urge the Council to recognise this danger. The mediation process, could, unless danger is recognised and addressed, particularly if it is part of the court process, may eventually, and quite unintentionally, and by unforeseen accretion become increasingly formalised and procedural. It really must not eventually become just one more part of the expensive process that all of us are trying to avoid.

I'm asked about Restorative Justice from time to time. It's all about accountability, amends and reconciliation.  Powerful stuff.  Take a look.  Here's my own article on Restorative Justice practices, which I compare to recovery in a 12-step community. 

Below, Arch Bishop Desmond Tutu on  The Forgiveness Project.

Check out Steve Mehta's recent post at Mediation Matters -- Negotiations Today Could Haunt You Tomorrow, once again confirming that the human interaction during the negotiation is more important to long term satisfaction with the deal than the raw economic benefit achieved.  As Mehta explains, a recent study reported Curhan, J., Elfenbein, H., Kilduff, G. Getting Off on the Right Foot: Subjective Value Versus Economic Value in Predicting Longitudial Job Outcomes From Job Offer Negotiations in the Journal of Applied Pyschology, 2009, V. 94, No. 2, 524-534 (.pdf)

found that the satisfaction with the experience the employees had during their job offer negotiations significantly predicted compensation satisfaction, job satisfaction, and turnover intention one year later.  By contrast, the actual economic value – meaning the value of the compensation package — achieved in the negotiation had no association with job attitudes or intentions to leave.

Interests In Employment Litigation

Just as the quality of the pre-employment relationship colors the entire workplace experience, so will a negative termination color the employee's retrospective view of the employment experience, thereby increasing the incidence of litigation.

Mediate.com Certification Program: A Grilling of Mediate.com CEO Jim Melamed

If you're worried about your law job becoming -- as they say in Britain - "redundant" or if you've already been laid off due to the recession, join Lawyer Connection which was born today as the result of a twitter conversation I had with Gwynne Monahan (who you can follow @econwriter).

Here's an exploration of what a mutual aid group is from the viewpoint of a social worker -- which speaks to me because I lived through my first husband's MSW in Social Work studies before he lived through my Law School experience (an eventual relationship-killer). 

Visit Lawyer Connection

From Andrew Cicchetti's Mutual Aid Based Group Work blog:

Mutual aid as group work technology can be understood as an exchange of help wherein the group member is both the provider as well as the recipient of help in service of achieving common group and individual goals (Borkman, 1999; Gitterman, 2006; Lieberman, 1983; Northen & Kurland, 2001; Schwartz, 1961; Shulman, 2006, Steinberg, 2004; Toseland & Siporin, 1986). The rationale for cultivating mutual aid in the group encounter is premised on mutual aid's resonance with humanistic values (Glassman, 2002) and the following propositions: 1) members have strengths, opinions, perspectives, information, and experiences that can be drawn upon to help others in the group; 2) helping others helps the helper, a concept known as the helper-therapy principle (Reissman, 1965) which has been empirically validated (Roberts et al, 1999); and 3) some types of help, such as confrontation, are better received when emanating from a peer rather than the worker (Shulman, 2006). Mutual aid transactions that occur amongst and between members stimulate cognitive and behavioral processes and yield therapeutic, supportive and empowering benefits for the members (Breton, 1990;Northen & Kurland, 2001; Shulman, 1986, 2006).

Obviously, we're not pursuing the therapeutic benefits of a mutual aid society as social worker Cicchetti is.  Having been a member of such a group (a community-based women's credit union in the early 1970's for instance) I can say that the experience is not only economically, but also personally, enriching.

Let's not wait for the economy to improve.  Let's start improving it TODAY.  We are the change we want to see in the world. 

JOIN US!!

British mediator and blogger Justin Patten (Human Law) has a terrific piece in his ezine today entitled Conflict is inevitable, combat is optional – how to negotiate without falling out.  Justin responds with sympathy to a recent survey calling his fellow Brits "the angriest nation in Europe," noting that the

wave of redundancies sweeping across the nation is forcing a number of employers, employees and their advisors such as lawyers and trade unions into conflict situation. As customers become slower and slower at paying added pressure is created for their suppliers and relationships become strained.

Because the "approach taken by those involved and their attitude in dealing with the conflict will have a significant impact on the outcome and the costs involved in finding a solution," Justin provides the following easy to implement solutions:

1 Avoid macho posturing – In an attempt to hide the weakness of their position some people are all bluff and bluster in conflict situations. . . . . (more)

2 De-personalise problems – My experience of disputes is that often things can happen due to personal issues between the individuals. It can be difficult to take the personalities out of a matter but believe me there are clear benefits. . . . (more) 

3 Focus on your own emotions – In many work environments there are unwritten rules that emotions are not to be expressed. Is this really wise?  . . . (more)

4 Listen – Effective communication starts with the speaker taking responsibility for understanding the language, perspective and experiences of the listener. . . . (more)

5 Analyse the Conflict – Research on problem solving indicates that the effectiveness of solutions increases significantly once the real problem is identified. . . . (more)

Justin Patten handles conflict for a living and whilst as a litigation solicitor he is familiar with the combat zone of the court room he much prefers to work with clients to achieve mediated solutions through negotiation and agreement. Contact Justin on 0844 800 3249 or email Justin here.

Further reading:

Negotiating for Excellent Results

Human Law Mediation has just published a new White Paper – Negotiating for Excellent Results – which contains advice and tips on how to negotiate with power and persuasion in conflict situations. You can download a PDF version of the White Paper here.

Keeping Away from Court Room Battles and Employment Tribunals

A White Paper with advice on How to save money, maintain business relationships and avoid negative publicity by embracing the power of mediation to resolve business and employee disputes. Download the PDF here.

You can subscribe to Justin's invaluable eZine here.

Among the most frequently asked questions at my negotiation trainings are these:

1. how do you negotiate with a sociopath?
2. how do you negotiate with people who are:
   
   1. evil
   2. dishonest; or
   3. 100% irremediable jerks
3. how do you negotiate when you are powerless (or simply weak)

Whenever someone asks me about negotiating evil, I think of Ken Cloke's brilliant book Conflict Revolution: Mediating Evil, War, Injustice and Terrorism – How Mediators Can Help Save the Planet (my review of that book here).  Some time ago, when I had the bright but failed idea of launching an online conflict resolution journal, Ken kindly let me publish his article Mediating Evil, War and Terrorism the Politics of Conflict, some of which I quote below.  I like the way Ken framed the problem in his earlier book, Mediating Dangerously, as follows:

For those who live under fascism, oppression, or tyranny, or face a fierce, unprincipled adversary, or are afraid even to exercise their own freedom, it may become necessary to engage in conflict, resist oppression, reject settlement, and raise their voices against the silence of acquiescence . . . . [T]here are limits to the desirability of ending [certain conflicts] prematurely, without a fair and honest examination of the underlying issues, and without the full participation of people whose lives will be irrevocably damaged by them . . . Collaboration implies mutuality and partnership, and even compromise involves give and take, but fascism merely [takes] giving nothing in return.

Those who recall the free speech movement on college campuses in the mid-sixties (most notably at U.C. Berkeley) will remember at least some of the words spoken by FSM leader Mario Savio:

There comes a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part, you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, the people who own it, that unless you're free the machine will be prevented from working at all.

One might criticize this rhetoric as being a bit overblown for the context in which the students were operating but they were young; had been taught in public schools to believe in and cherish freedom; and, were stunned to find that their on-campus speech was regulated, controlled, and, punished.  Savio's voice is the voice of all peoples who find their freedom suppressed or denied altogether.

So what do we, mediators and interest-based negotiators, do when confronted with tyranny?  Cloke's partial response (see full article here) is as follows:

Genuine, lasting peace is impossible in the absence of justice. Where injustice prevails, peace becomes merely a way of masking and compounding prior crimes, impeding necessary changes, and rationalizing injustices. As the Trappist monk Thomas Merton presciently observed:

  To some men peace merely means the liberty to exploit other people without fear of retaliation or interference. To others peace means the freedom to rob others without interruption. To still others it means the leisure to devour the goods of the earth without being compelled to interrupt their pleasures to feed those whom their greed is starving. And to practically everybody peace simply means the absence of any physical violence that might cast a shadow over lives devoted to the satisfaction of their animal appetites for comfort and leisure.... [T]heir idea of peace was only another form of war.

When millions lack the essentials of life, peace becomes a sanction for continued suffering, and compromise a front for capitulation, passivity, and acceptance of injustice. This led anthropologist Laura Nader to criticize mediation for its willingness to “trade justice for harmony.”

True peace requires justice and a dedication to satisfying basic human needs, otherwise it is merely the self-interest of the satisfied, the ruling clique, the oppressors, the victors in search of further spoils.

For peace to be achieved in the Middle East or elsewhere, it is essential that we neither trivialize conflict nor become stuck in the language of good and evil, but work collaboratively and compassionately to redress the underlying injustices and pain each side caused the other. Ultimately, this means sharing power and resources, advantages and disadvantages, successes and failures, and satisfying everyone’s legitimate interests. It means collaborating and making decisions together. It means giving up being right and assuming others are wrong. It means taking the time to work through our differences, and making our opponents' interests our own.

In helping to make these shifts and move from Apartheid to integration, the South African Truth and Reconciliation Commission found that for people to reach forgiveness, they needed to exchange personal stories of anger, fear, pain, jealousy, guilt, grief, and shame; to empathize, recognize, and acknowledge each other’s interests; to engage in open, honest dialogue; to reorient themselves to the future; to participate in rituals of collective grief that released their pain and loss; and to mourn those who died because neither side had the wisdom or courage to apologize for their assumptions of evil, or the evil they caused their opponents and themselves.

At the same time, they also needed to improve the daily lives of those who suffered and were treated unjustly under apartheid. Where shanty towns coexist with country clubs, peace cannot be lasting or secure. Where some go hungry while others are well-fed, terror and violence are nourished. In the end, it comes down to a question of sharing wealth and power, realizing that we are all one family, and that an injury to one is genuinely an injury to all.

Making justice an integral part of conflict resolution and the search for peaceful solutions means not merely settling conflicts, but resolving, transforming, and transcending them by turning them into levers of social dialogue and learning, catalysts of community and collaboration, and commitments to political, economic, and social change. By failing to take these additional remedial steps, we make justice secondary to peace, undermine both, guarantee the continuation of our conflicts, and prepare the way for more to come.

By the way, tomorrow is Ken's birthday.  HAPPY BIRTHDAY KEN!!!

I spent the day at an advanced mediation training session at the U.S. District Court in Los Angeles where I serve as a settlement officer. I came away troubled by the wide array of responses to questions concerning the mediator's "right" or "desire" or "need" to use deception in separate caucus mediation - the primary form mediation takes in Southern California litigated cases.

At the end of our session, I suggested to a fellow mediator that all separate caucus mediation is inherently deceptive. He is a sophisticated practitioner and knew exactly what I meant. My husband - a litigator of 35 years who is also (newly) on the District Court's Settlement Officer panel - recoiled at the idea.

Here, for your consideration, is an excerpt from a lengthy discussion of the issue from the Journal of the DuPage County Bar Association -- Defining the Ethical Limits of Acceptable Deception in Mediation by JAMS mediator the Hon. John W. Cooley (Ret.) 

[C]onsensual deception is the essence of caucused mediation. This statement should not come as a shock to the reader when it is considered in the context of the nature and purpose of caucusing. Actually, it is quite rare that caucused mediation, a type of informational game, occurs without the use of deception by the parties, by their lawyers, and/or by the mediator in some form. This is so for several reasons.

First, a basic groundrule of the information system operating in any mediated case in which there is caucusing is that confidential information conveyed to the mediator by any party cannot be disclosed by the mediator to anyone (with narrowly limited exceptions). This means that: (1) each party in mediation rarely, if ever, knows whether another party has disclosed confidential information to the mediator; and (2) if confidential information has been disclosed, the nondisclosing party never knows the specific content of that confidential information and whether and/or to what extent that confidential information has colored or otherwise affected communications coming to the nondisclosing party from the mediator. In this respect, each party in a mediation is an actual or potential victim of constant deception regarding confidential information — granted, agreed deception — but nonetheless deception. This is the central paradox of the caucused mediation process. The parties, and indeed even the mediator, agree to be deceived as a condition of participating in it in order to find a solution that the parties will find "valid" for their purposes.

Second, mediation rarely occurs absent deception because the parties (and their counsel) are normally engaged in the strategies and tactics of competitive bargaining during all or part of the mediation conference, and the goal of each party is to get the best deal for himself or herself.

These competitive bargaining strategies and tactics are layered and interlaced with the mediator’s own strategies and tactics to get the best resolution possible for the parties — or at least a resolution that they can accept. The confluence of these, initially anyway, unaligned strategies, tactics, and goals creates an environment rich in gamesmanship and intrigue, naturally conducive to the use of deceptive behaviors by the parties and their counsel, and yes, even by mediators. Actually, even more so by mediators because they are the conductors — the orchestrators — of an information system specially designed for each dispute, a system with ambiguously defined or, in some situations, undefined disclosure rules in which the mediator is the Chief Information Officer who has near-absolute control over what nonconfidential information, critical or otherwise, is developed, what is withheld, what is disclosed, and when it is disclosed. As mediation pioneer Christopher Moore has noted: "The ability to control, manipulate, suppress, or enhance data, or to initiate entirely new information, gives the mediator an inordinate level of influence over the parties."

Third, the information system manipulated by the mediator in any dispute context is itself imperfect. Parties, rarely, if ever, share with the mediator all the information relevant, or even necessary, to the achievement of the mediator’s goal — an agreed resolution of conflict. The parties’ deceptive behavior in this regard — jointly understood by the parties and the mediator in any mediation to fall within the agreed "rules of the game" — sometimes causes mediations to fail or prevents optimal solutions from being achieved.

Thus, if agreed deception is a central ingredient in caucused mediation, the question then becomes what types of deception should be considered constructive, within the rules of the mediation game, and ethically acceptable and what types should be considered destructive, beyond the bounds of fair play, and ethically unacceptable. Or, perhaps more simply, in the words of mediator Robert Benjamin, in mediation what are the characteristics of the "noble lie" — deception "designed to shift and reconfigure the thinking of disputing parties, especially in the conflict and confusion, and to foster and further their cooperation, tolerance, and survival"? Because formal mediation is generally viewed as "nothing more than a three-party or multiple-party negotiation," we can begin to formulate an answer to this question by examining the current limits of acceptable deception as employed by lawyer-negotiators.

New Zealand mediator Geoff Sharp blogged on this topic under the rubric "noisy disclosure" recently, noting that

Mediators can assist parties in reaching a zone of possible agreement by making limited and heavily filtered disclosures of the parties’ private concessions that the parties disclose in caucus sessions (Brown and Ayres call this “noisy” communication).

See my own short post on mediator predictions and false signals here. 

 I urge all my readers to comment, but particularly litigators like my husband who may not know what many mediators have apparently known for quite some time -- that they are making "filtered disclosures of the parties' private concessions" after promising to keep all separate caucus communications strictly confidential.

My husband assured me on the way home tonight that he will henceforth require all of the mediators he retains to guarantee him that they will not "signal" his negotiating positions, tactics or strategies to his bargaining partners.

Your thoughts?

The American Arbitration Association announces a new set of dispute resolution services for businesses and consumers, including new panel members of which I am one.

Mediation and non-binding arbitration are processes that offer parties opportunities to settle their disputes. Pursuing settlement helps clients to reduce the total cost of conflict management in their organizations, provides flexibility and protects valuable relationships with partners
and customers.

The American Arbitration Association®’s (AAA) Non-Binding Dispute Resolution Services for Businesses and Consumers is a suite of settlement services and solutions that include:

• Mediation

• Non-Binding Arbitration

• Non-Binding Arbitration and Mediation Contract Clauses Guide

An important element of the suite is access to AAA staff facilitators who stand ready to aid parties in selecting the settlement options most appropriate for their needs and the circumstances at hand. To reach a facilitator, simply select the “Contact Us” option below to send an email requesting information
and assistance.

Here are the consumer procedures.  You can also find these rules on the commercial dispute resolution page here.  And here's a .pdf download of dispute resolution clauses geared toward the business and consumer dispute resolution services provided by the AAA.

Although a California Court may properly sanction a non-party insurance carrier who possesses the authority to settle litigation for its failure to participate in a mandatory settlement conference, there is no statutory (nor inherent) authority given the Court to sanction the carrier or a party for its purported failure to negotiate in "good faith."  As the Court in Vidrio v. Hernandez (2d DCA) explained today:

In sum, even were we to agree with the trial court's assessment of the conduct of counsel and the [insurance] adjuster, the failure to increase a settlement offer or to otherwise participate meaningfully in settlement negotiations violates no rule of court and is not a proper basis for an award of sanctions.11 (See, e.g., Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415, 1424 [“[w]e eschew any notion that a court may effectively force an unwilling party to settle by raising the specter of a post hoc determination that failure to do so will be evidence of failure to participate in good faith”]; Sigala v. Anaheim City School Dist., supra, 15 Cal.App.4th at p. 669 [“„[a] court may not compel a litigant to settle a case, but it may direct him to engage personally in settlement negotiations, provided the conditions for such negotiations are otherwise reasonable‟”].) [Defendant] filed an appropriate settlement conference statement; her lawyer and Mercury [the insurance carrier] attended the conference and participated in it. While the trial court‟s frustration at the parties‟ lack of movement is understandable, no more was required.
 

In particular, the Court of Appeal, held that the Court was not at liberty to "judge" whether the defendant and its carrier "should have" offered more than had previously been offered at a mediation either because the case was "worth" more or because the offer was so low in light of the attorneys fees and costs that would likely be incurred at trial.

I believe most mediators would approve of this ruling, even though it applies only to settlement conferences and not to mediations, the latter of which is protected from the Court's inquiry by Evidence Code section 1119.  Whether or not a mediator, a settlement judge, a party or a trial judge believes a defendant "should" offer more or a plaintiff "should" accept less by way of settlement, should not form the basis of an award of sanctions.  Not only would such a rule decrease citizens' trust and respect for the Courts, whose job it presumably is to provide a forum in which litigated disputes may be tried, such a rule would impermissibly chill the parties' Constitutional right to a jury trial.  

Discouraged by the adversarial process?  Looking for lawyers who will handle your commercial dispute without going to "war" with all the expense and collateral damage that involves?

This excellent talk by Webb has been viewed 202 times, while "Drunk Lawyer" below has been viewed by nearly 300,000 people.  It's not surprising that drunken trial lawyers are far more entertaining than some old guy talking about attorneys bringing potluck to negotiate the resolution of a lawsuit. 

The question is this:  Do you want to pay for the entertainment of conflict or resolve it and move on with your plans to create a profitable future for your company and its employees.

"Drunk Lawyer" is, after all, free on YouTube!

Thanks to Cutting Edge Law for gathering together the Stu Webb and other videos on the revolution in legal practice that's being fomented right around the corner -- just about the time the BigLaw model fails along with dinosaurs like General Motors.

You didn't hear it here first.  But you will hear it here often.

This is the fourth video of this painful encounter on YouTube but it's the one in which the attorney is asked to "blow" a breathalyzer for the Court.

Wondering how to settle construction litigation in the midst of an economic downturn that has emptied your contractor clients' pockets?

Check out How Can Insulation Contractors Maximize Insurance Coverage over at Scott Godes' excellent Corporate Insurance Blog.

If I had to live my commercial litigation career all over again, I would start by making sure I understood everything I possibly could about the potential for insurance coverage, particularly when reading the terms of coverage makes me believe there is none.

When "sudden" can mean "gradual" all bets on attorneys understanding the ordinary meaning of policy language are off, right Scott?  As Scott's post notes, his recent presentation, Insurance_Coverage_Issues_for_Asbestos_Non-Products, discusses the potential for multiple policy limits of insurance coverage to apply to asbestos claims.

Thanks to Anne Reed at Deliberations for "tweeting" (@annereed) the article Flexible Approach To Acute Conflict Results In More Frustration and Anger, Study Shows.

The research subject of the article suggested that having a more flexible approach to resolving an acute conflict interaction results in more frustration and anger.

I'll need to see the study itself to be convinced.  The study described merely suggests that people offering a greater number of solutions to a party pre-instructed to stonewall will become angrier than those offering fewer solutions, i.e., that those who persist in trying, and failing, to resolve a conflict, get more and more angry and frustrated than those who give up more easily.

This does not suggest to me that "greater negotiation flexibility" necessarily results in a greater degree of anger in the negotiation dyad, but only in the person attempting to resolve a dispute that his partner has been instructed to resist.  Though an apt description of the adversarial process, this is not a fair depiction of persistent attempts to negotiate resolution where the negotiators are given a fighting chance of closing a deal.

As the article explained, study participants were told that a neighbor was playing music too loudly and instructed to ask that it be turned down.

During the interaction, the [participants] followed a script of uncooperative responses such that the task could not be resolved.

"We categorized the verbal responses of participants during the task into seven types of negotiation strategies, including problem-solving and aggressive/threatening. Individuals who used a smaller set of strategies were considered less 'flexible' than those who used a greater variety of strategies," Roubinov said.

The [researchers] . . .  also looked at the intensity of participants' facial expressions of anger or frustration, and measured participants' biological response to the task using cortisol, a stress hormone.

"Our results indicated that greater flexibility may not be the healthiest approach," Roubinov said. "Unlike less-flexible participants, those who tried a greater variety of responses showed more intense facial expressions of anger and frustration. Cortisol levels in more flexible participants also reflected an unhealthier biological response to stress than the less flexible participants."

Of course persistent participants become increasingly frustrated (and angry!) when their multiple suggestions to resolve a dispute are met with stonewalling from their negotiation partner.  This doesn't suggest, however, that "greater [negotiation] flexibility" is not healthy.  It suggests that stonewalling leads to anger, one of the reasons that mediators are employed to help all participants in a negotiation generate potential solutions.

I'll look forward to seeing the study when it's released but based upon this article, I'd say the conclusion drawn is misleading broad and unduly pessimistic.

I'm attaching a Policyholders Guide to Mediation not because it's particularly useful in regard to the strategy and tactics necessary to be a successful mediation advocate, but to share with my fellow mediators just how low an opinion many litigators have of us.

Notice on page 2 (Mediation Downsides) the following:

• mediator may inappropriately discourage/scare the policyholder to force a settlement
• mediator may "tell insurance company things you ask them to keep secret" (!!!)
• mediator may have a financial stake in keeping the insurance company happy

Thanks to policyholder counsel extraordinaire Stephen Goldberg of Dickstein Shapiro for passing this along to me.

I've scaled my MCLE way back this year, including any continuing education that requires travel unless, of course, it's something I'm speaking at to continue growing my business.  Some MCLE courses, however, stay on my radar -- particularly those that don't require me to leave the office and that teach me skills to help me thrive in hard times.  This IP settlement webinar is one of those continuing education courses I'd attend unless I thought I was already the best settlement attorney I could be.  So seriously consider joining me and Chicago-IP lawyer extraordinaire R. David Donoghue of Holland + Knight for Hard Times? Learn How to Negotiate the Best IP Litigation Resolution

Live Telephone Seminar

ADR in IP Litigation from ALI-ABA

Wednesday February 18, 2009 from 1:00-2:00 pm EST

Why Attend?

In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.

What You Will Learn

This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:

How to choose between litigation and ADR.

• The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
• The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
• The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
• The Ten Mediation/Settlement Conference Traps for the Unwary.
  

Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.

The British call layoffs "redundancies."    I prefer the American term - layoff -  because it focuses on the employer's need in times of economic stress ("I can no longer afford to pay you and so must lay you off) to the British locution which focuses on the employee's presumed inefficiency ("because your work is being performed (better?) by others, you have become redundant.")

Why the attention to semantics?  Because in times of massive law firm layoffs (see Law Shucks Lay-off Tracker here) you don't want today's efficiency become tomorrow's crushing legal liability. 

Lawyer Layoff Paranoia by the brilliant Charles Fincher at LawComix.com.

So how do you avoid the looming threat of litigation by laid off employees?  According to researchers, you terminate graciously, honestly, with expressed respect and compassion, and, if possible, with offers to help the laid off employee find work and replace critical benefits such as health insurance. 

Why do terminated employees bring suit?  It's not, as I'm always saying, just about the money. 

Researchers have found, for instance, that:

• Feelings of unfair, insensitive treatment at the time of termination had nearly twice the effect of the next most potent factor in bringing suit.
• Blame was not strongly related to the claiming process 
• There is some, but slight, support for the proposition that certain groups -- women and minorities - are especially likely to sue
• Perceptions of poor on-the-job treatment motivate lawsuits as much or more than an individual's belief in his or her ability to prevail in litigation
• the shorter the notice of termination, the greater the likelihood of suit

Finally, and most importantly for law firm management, the best predictor of a former employee's willingness to file claims for wrongful termination was highly educated respondents.

Researchers have also catalogued the most common on-the-job experiences that lead to litigation, including most prominently,

• negative experiences with supervisors;
• the belief that processes used by the supervisor are unfair.
• violations of procedural justice (the perceived fairness of the procedures by which outcomes are determined)
• perceived violations of equity and distributive justice  (the perceived fairness of outcomes)
• perceived violations of interactional justice  (the perceived fairness of the nuances of interpersonal treatment)
• survivors' attitudes toward their organization are strongly associated with their beliefs about the fairness of the manner in which their companies laid off other workers
   

"Blaming and claiming" activity (lodging grievances; seeking relief from the EEOC; retaining legal counsel to file suit) is strongly correlated with the manner in which employees are terminated.

Why?

Because Termination Causes Employees to Reevaluate Fairness in Working Conditions.  And you do not want to give employees the opportunity to reevaluate those conditions in light of their last employment experience - termination - unless that experience is positive.

The researchers have found that:

• people react strongly to nuances of treatment and style at the time of termination
• the quality of dismissal affects people’s decision to bring suit as much as termination itself.
• a fair, honest, and dignified termination should substantially reduce the temptation to retaliate through litigation.

The experts therefore recommend that employers:

•  treat their laid-off or fired employees with compassion and respect at the time of termination
• give several weeks advance warning to all laid-off or fired employees
• provide terminated employees with help in finding new employment
• give terminated employees honest accounts for the cause of their termination
• provide transitional alumni status to terminated employees when possible
• provide symbols of positive regard to terminated employees such as letters of reference, departure gifts or parties
• offer counseling services to terminated employees to ease the psychological shock of employment termination

According to a recent ABA Journal article entitled One Lawyer Layoff Saves an Average of $250,000 also notes that:

• some of the savings from layoffs is initially eaten up by severance payments
• at least one firm chairman indicated that the firm pays about $7 million in severance for every $10 million saved in compensation
• another firm chairman estimated that it takes about nine months before any savings are realized by lawyer layoffs.

If law firms don't want these savings to start bleeding red ink, they'd do well to study "naming, claiming and blaming" behaviors of terminated employees and to implement processes and procedures to reduce the potential for litigation flowing from these cost-saving measures.

For further reading, see my own Power Point Presentation from which most of the above statistics were taken here and the article from which most of that information was derived:  The Winding Road from Employee to Complainant here.

It's the British, of course, who we have to thank for the common law, the adversarial system of justice and that most lyrical denunciation of lawyers' passionate pursuit of legal procedure, Bleak House.  Charon QC is a serial podcaster, writer and producer of the satiric online soap opera West London Man, founder of the largest private law school in Great Britain, and all around QC about town.

My postcast interview with the great QC is here and his own is below.

Podcast 94: US lawyer Victoria Pynchon on ADR, mediation and settlement in the USA

Today I am talking to Victoria Pynchon, a US lawyer based in Los Angeles, California. She was a commercial litigator and trial attorney for 24 years before shifting her practice from representing clients in court to helping lawyers settle lawsuits hat involve greater risk, expense or time than their clients wish to expend. She this work through Judicate West Dispute Resolution Services, serves as a private judge (arbitrator) for the American Arbitration Association, is an adjunct professor at Pepperdine University and blogs at IP ADR and Settle it now. Interestingly Vickie also acts as a sherpa for Blawg Review the international rolling carnival of law bloggers and is on Twitter.

So who is Charon QC?  Let him tell you himself in this Podcast Interview at Family Lore, the blog of British family law attorney John Bolch.  To get an even better idea of Charon QC and the many reasons to read his blog, I give you his own introduction to himself at Charon QC the Blawg.

If you live in Ohio, there's some hope that you can negotiate your way out of foreclosure with a Court-annexed foreclosure mediation program.  See Foreclosure filings rise in five counties at the the Crescent News. Excerpt below.

UPDATE:  Connecticut also has a foreclosure mediation program: See
Success For Mortgage Mediation in Connecticut?

Effective July 1, 2008, Connecticut established a mediation program for foreclosures.  Statistics available for the latest period ending November 30 2008 reveal some interesting detail.  Mediators are working diligently to rescue residential homes from the auctioneer.  However, the program is missing important components.

In the period of July 1st to November 30th, there were 9,917 foreclosures filed in the state, an average of 450 cases per week.  In that period, mediators successfully negotiated 519 cases so that homeowners got to remain in their homes.  This is just slightly over 5% of all cases filed.  Only 380 cases or 3.83% resulted in a modification of the mortgage terms.  Despite the hard work of Connecticut’s mediators, the state’s residents are not being protected from foreclosure.

UPDATE:  You can find a podcast about the New Jersey foreclosure mediation program on the New Jersey Law Blog here!  Here's the New Jersey Court's material for that program.

UPDATE:  Thanks to the ABA Dispute Resolution Magazine for informing us that Minnesota now also has a foreclosure mediation program.  See Minnesota Law Offers Foreclosure Mediation to Homeowners at the Foreclosure Listings blog here.

UPDATE:  Foreclosure Mediation Programs Commenced Under Local Ordinance in Providence, Rhode Island: Providence Foreclosure Ordinance Aims to Protect Renters (excerpt below):

 PROVIDENCE, R.I. (WPRI) - In an effort to protect families from foreclosure, Providence Mayor David Cicilline unveiled two ordinances Monday morning during a news conference in the city's Olneyville neighborhood.

The first proposal, Tenants Protection Against Foreclosures Ordinance , is meant to protect renters from eviction when their apartments are subject to foreclosure proceedings.

A proposed state law, that would have provided similar requirements, failed in the General Assembly last year. Rhode Island Housing Executive Director Richard Godfrey applauded Providence for stepping in to provide that protection.

The second proposal, Foreclosure Mediation Ordinance , would require financial institutions and property owners to engage in mediation with a HUD-approved counselor before moving ahead with a foreclosure.

UPDATE:  Lawsuit stops eviction in predatory lending case in California here.

"We have a court adjunct mediation program," said Schmenk. "The worst thing people can do is do nothing. The best thing is to get an answer filed on their behalf and open up a discussion with the mortgage holder to avoid it going to the foreclosure sale. Often times they can get something worked out with the lending institution short of losing their home."

When a foreclosed home goes up for auction bids start at two-thirds of the property's appraised value.

"Most time the lenders are holding significantly more than that in debt," said Schmenk. "We've noticed in a number of cases things get worked out and they are able to enter into some kind of accommodation that works for lender and mortgage borrower."

Schmenk encourages individuals facing foreclosure to take part in mediation programs.

There was a mediation just last week in Defiance County, said Cheryl Timbrook of the common pleas court. Overall, she said that they haven't had many requests for mediation so far.

Sonnenberg said Henry County has had a mediation program available for foreclosure for a year. She said there has been an increase in requests for mediation since the court started sending out information about the program as well as how to file an answer to the foreclosure summons received by defendants.

"I don't think many people knew about it before," she said.

Chris DelFavero, mediation coordinator for the state's Northwest Ohio Court Mediation Services, said he's seen an increase in individuals asking for foreclosure mediation. Northwest Ohio Court Mediation Services covers Henry, Defiance, Fulton, Paulding, Williams and Putnam counties. The program started last spring.

"With the help of the (Ohio) Supreme Court we established a process for referrals through the (county) clerk's offices," said DelFavero, who added that referrals started to pick up this summer. "Last month I had the most referrals since we started. I had 11 referred this past month. We started with just two or three a month, and now we have two a week."

DelFavero said that many cases involve jumps in interest rates, causing payments to increase or individuals who have seen a decrease in pay.

"Those are the cases we hopefully can resolve and come up with a repayment plan or refinance their rates," he said. "The general problem in the industry was the subprime rates. Some of it is the economy, with people losing their overtime. Sometimes loans are given based on people making $40,000 and then they lose their overtime so now they are making $30,000. They are working, but may have fallen four to five months behind. The lender usually will work with them."

The anger, suspicion and ill will that has characterized the first eight hours of this mutli-party, eight-figure antitrust mediation is about to heightened as I deliver Defendants' terms:  they will pay the settlement agreed upon in six equal yearly installments over three full years without any security to back it up.

Are you wondering what your mediator is thinking at times like this?

Aaaarrrrggggghhhhhhhhhhhhhhhhh!!!!!!!!!!!

That "thought" is momentary, however, like the cry you squelch when the trial judge does something like, say, grant the other side's motion to disqualify your expert witness during the second week of trial. 

I don't have a plan, but I do have ideas.  Just as my suggestion that we use a bracketed offer to break impasse had eventually done just that, I'm already thinking of ways that the parties' most intractable and conflicting positions might move them toward agreement.

"They can wait," defense counsel is saying, "or they can try the case in February and see if they can collect it," to which a principal adds,  "this puts them on our side for a change.  If we make the money we believe we can, they'll benefit too."

"I thought you said you knew you could," I say, laying groundwork for the contingency ahead. 

"Yes, absolutely.  We know we can."

Back in the Plaintiffs' caucus room, the parties and their counsel aren't simply angry; they're flabbergasted.

"They sand-bagged us," says Plaintiffs' counsel.  "We'll report this to the Judge.  They didn't come here in good faith.  They're deliberately wasting our time."  

After some calming discussion about why the cash-poor defense would deliberately pay their own attorney and one-half of my daily fee in bad faith . . . a question to which no answer ever eventuated . . . Plaintiffs and their counsel begin to confidently predict the defense's inability to make a single installment payment.  Plaintiffs believe the defendants have resources - secreted away somewhere - but will never use them to settle this case.

When the temperature of the room has diminished to that of the sun's surface rather than its core, I ask about the possibility of a stipulated judgment in the event of default. 

"In a sum you hope the jury will award you at trial," I proffer.  "If you're right; if they have no intention, nor any ability, to pay even the first installment, you'll be in the same position on default that you'd be in if you prevailed at trial.  And if they're capable of paying, they're much more likely to do so if the alternative is a mutl-million dollar judgment against them."

Though the total sum of the Stipulated Judgment is the main topic of discussion over the following two hours, the parties' insistent conflicting predictions for the future make it all but inevitable they will eventually reach agreement.  If the defense never pays, the Plaintiffs will have their judgment more or less immediately, without the burden of proving it up.  And if the defendants are good for their word that they can service the "debt" the settlement agreement creates, they never have to worry about this potential judgment becoming a reality. 

The Stipulated Judgment as Contingency Contract

As Professor Leigh Thompson of the Kellogg School of Management, Northwestern University, writes in The Mind and Heart of the Negotiator, the contingencies built into the parties' agreement (and the Stipulated Judgment providing for its enforcement) permit them to use their differences to reach agreement - betting on their own predictions for the future and protecting themselves against their worst fears about the other.  As Professor Thompson instructs:

Often, a major obstacle to reaching negotiated agreements concerns negotiators' beliefs about some future event or outcome.  Impasses often result from conflicting beliefs that are difficult to surmount, especially when each side is confident about the accuracy of his or her prediction and consequently uspicious of the other side's forecasts.  Often, compromise is not a viable solution, and each party may be reluctant to change his or her point of view.

Fortunately, contingent contracts can provide a way out of the mire.  With a contingency . . . differences of opinion among negotiators concerning future events do not have to be bridged; they become the core of the agreement. . . . [Parties] can bet on the future rather than argue about it.

Here, the agreement calling for a Stipulated Judgment of sufficient size to deter default, allowed the parties to:

1. bet on rather than argue about their different forecasts for the future;
2. manage their decision-making biases (overconfidence and egocentrism) by building them into the settlement agreement itself;
3. solve the trust problem by creating a contingency (judgment) against the unknown ability of the defendants to perform
4. diagnose the other side's honesty by "daring" him to bet on his own predictions
5. reduce risk through sharing the upside gain (defendant will pay) and the potential loss (defendant will default)
6. increase defendants' incentive to perform at or above contractually specified levels.

See The Mind and Heart of the Negotiator, The Six Benefits of Contingency Contracts, Box 8-2.

There's more, however.  The parties agree to the Stipulated Judgment in principle and sum during hour eleven and we've got three more hours to go.

Stay tuned!

It's 8 p.m. and you've just spent nine straight hours negotiating the settlement of complex commercial litigation with multiple parties that was filed before George Bush first took office.  The case has been up on appeal twice and is now scheudled for trial in February.  All defendants but the final three standing have settled.   Three of the principals have flown in from out of state and two of the attorneys have driven a few hundred miles to Los Angeles from their home towns. 

"Let's just write up the deal points," says Lawyer No. 1, yawning.  "We can write up the full agreement over the long weekend."

Lawyer No. 2 turns to me and says "Judicate West has a form, right?  Let's use that."

Before we go further, let me give you the complete, verbatim language of the online skeletal Judicate West form.

Date:_________________

Stipulation for Settlement


    VS.                           

IT IS HEREBY STIPULATED by and between the parties through the respective counsel or representative of each that the above-referenced case has been settled according to the terms memorialized herein below.  This document is binding on the parties and is admissible in court pursuant to Evidence code section 1123 and enforceable by motion of any party hereto pursuant to CCP section 664.6.                                                                                   

In order to facilitate the above specified terms of settlement, the parties further agree that on or before the          day of          they will execute or change the following:

• Settlement / Release Agreement   Prepared by _____plaintiff_____defendant

• Request for Dismissal     Prepared by _____plaintiff_____defendant

Other____________________________________________________________

All relevant parties must sign below.  Copies are acceptable in lieu of originals.

I know.  You didn't expect the case to settle.  At least that's what I've been hearing you all tell me since hour one of the mediation.  But now we're in hour nine and the basic deal points have been reached.  It's January 15.  Trial is in 30 days.  You have all the parties present and the mediator who has by now sussed out the BS; developed a good working relationship with all sides of the dispute; knows how hard the parties worked to get here; and, is unlikely to let the "devil" in the details sink the settlement ship.

What do you do?

My own answers in next post.

There's a great new LinkedIn Group Mediators and Peacemakers that anyone interested in the dynamics of conflict and its resolution should think about joining.  Recently, a group member posed this question:

How do you as a mediator recognize the signs of cross cultural differences and how do you resolve that type of dispute? How often do you come across this type of dispute?

I was thinking about how I might answer it when I noticed that my colleague and friend, mediation guru Lee Jay Berman, had taken the time to jot down his thoughts, which were better than any I was having, yet precisely expressed my own experience mediating conflict.

Here's what Lee Jay had to say:

I think that some is easy to recognize, like two Korean businessmen walking in with their counsel, knowing that they will have a value system that is based around how Korean businesses conduct themselves, and knowing that trying to overlay that onto an American legal system is going to be awkward for them.

But my belief is that NEARLY ALL conflicts are cross-cultural. The vast majority of what I see as cross-cultural conflicts don't present themselves as such at first glance because they may occur between two people of the same color skin, same nationality, same faith and even same family. I think we risk falling into the belief that cross cultural disputes only exist when we have people of different racial cultures at the table. We sometimes think we can turn our cross-cultural radar off when both people sitting there look the same to us. But to me, most conflict comes from different cutltural perspectives, different expectations based on how we were raised and what they see as "normal" or how people "should" conduct themselves.

The example I live with is that my wife and I were both raised Jewish, both families grew up with Christmas trees in our homes, too. We both went to UCLA, we both love sports, and the list goes on and on. When we married, we had the expectation that we would be relatively the same when it came to living our lives together. But when it came to communication styles, especially around disputes or disagreements, what we each learned from our families (the tribes in which we were raised and where we learned our norms) could not have been more different. Early in our marriage, this created constant cross-cultural disputes, which turned into conflict because of the assumptions we each made about what was the "normal" way to deal with disagreements. On paper, most people would never say that my wife and I were cross-cultural, but in real life, we had a huge cross-cultural rift that was invisible to most, and even to us at first.

The moral of this story is that we must ALWAYS be looking for evidence of cross-cultural issues, even when they don't present with different skin color.

Book Review of Conflict Revolution; Mediating Evil, War, Injustice and Terrorism: How Mediators Can Help Save the Planet by Kenneth Cloke reviewed by Victoria Pynchon - Get more College Essays

As CR Info explains

People tend to break off interaction and communication with those they dislike. When this happens people become stuck in autistic hostility, that is, their hostility is perpetuated by their refusal to communicate.

One-time Colorado Avalanche forward Steve Moore and former Vancouver Canucks winger Todd Bertuzzi met in Toronto on Monday for a court-ordered mediation hearing in an effort to prevent a lawsuit from heading to court.

It was the first face-to-face meeting between the two since Bertuzzi's infamous sucker punch during a March 8, 2004, game in Vancouver that ended Moore's career.

Let's see.  That's nearly FIVE YEARS with no communication.

Read this article.  Rinse.  Repeat.

From cbcsports.ca with h/t to @DalydeGagne in my twitter network.